November 15, 2016 § 7 Comments
Court interpreting is a complex task that requires of all main modes of interpretation: simultaneous, sight translation, and consecutive. There seems to be a consensus among court interpreters as to when simultaneous interpreting and sight translation are required during a judicial proceeding. I am afraid that we cannot say the same about a consecutive rendition.
Consecutive interpreting is convenient, and for that reason, widely used during client-attorney interviews at the law office, detention center or courthouse. It is also the mode most attorneys use to prepare their witnesses for the stand. Even those attorneys and interpreters who favor simultaneous interpretation partially use the consecutive rendition. It is common to have a situation where the interpreters simultaneously interpret the attorney’s questions or remarks to the client or witness while resorting to the consecutive mode for the answers.
For reasons we will not discuss on this post, many courthouses have adopted this system for direct and cross-examination of foreign language-speaking witnesses during a trial. They employ the services of two court interpreters: One interpreter, located away from the witness stand, sometimes in a booth, others at a dedicated table in the courtroom, simultaneously interprets the questions for the witness who gets the rendition via a receiver and an earpiece. The other interpreter, sitting or standing next to the witness stand, waits for the foreign language-speaking witness to answer the question aloud in his or her native language, and then interprets said answer consecutively. Some have proposed that both, question and answer be interpreted simultaneously from a booth using standard interpreting equipment, with the jury, judge, attorneys, and others listening to the answers through a receiver and an earpiece, the same way a question and answer session is conducted in a conference setting. So far, I have not seen this anywhere, and later we will address what I believe are the reasons why this has not been attempted.
Therefore, most courtrooms use consecutive interpreting at least for the answers given by the witness, defendant, victim, or expert, from the witness stand. The controversy arises at the time of deciding what kind of consecutive interpretation is best suited for a trial.
We all know that there are two main types of consecutive interpreting: long consecutive, used in conference settings, press conferences, diplomatic and ceremonial acts, and others; and short consecutive, generally considered as the rendition of choice for court proceedings. Recently healthcare interpreters have entered the professional stage as a major presence; they generally use an even shorter form of consecutive interpreting than the one chosen by many court interpreters.
Dear friends and colleagues, I constantly travel for professional reasons, and my trips take me to places where I have a chance to meet and talk to local interpreters who share their concerns, ideas, and experiences with me. This, together with my own experience as a court interpreter for many years, and what I have observed in courtrooms of several nations, made me realize that there are two distinct schools of thought: Some of our colleagues believe that interpreters should use long consecutive from the stand, and others think that short consecutive is more appropriate.
We call long consecutive the interpretation of a segment of a speech in the source language that the interpreter renders into the target language after the orator has spoken for about 10 to 15 minutes (sometimes longer) relying on his concentration, memory, visualization, and note taking, rendering longer messages with more complete ideas and more separated in time. It is used by diplomatic, media (press conference) and conference interpreters. It requires of a skilled interpreter who knows the basic consecutive interpreting techniques, and allows for the source speaker to convey more complete thoughts, as he is not encouraged to cut the ideas short for the sake of shortening the segments. Interpreters who defend this type of rendition argue that it fosters a more comprehensive answer or narration of facts, helps the jurors and judge understand the answers, and because of its complexity, it requires more seasoned, capable interpreters, eliminating mediocre ones who simply cannot provide a lengthy consecutive interpretation. A lot of formally educated, and current and former conference interpreters favor this modality.
Short consecutive works with shorter segments of speech, often lasting between 10 seconds to one minute, or about fifty words (U.S. Federal Court Interpreter Examination handbook) and it is used in court hearings and other legal settings such as depositions and witness preparation sessions. It requires a skilled interpreter who mainly relies on memory, but also uses concentration, visualization, and a note taking system that is quick enough for the interpreter to begin the rendition almost immediately after the speaker finishes the segment in the source language. The length of the segment makes it difficult to embrace very long elaborate descriptions, as the orator is encouraged to stop for the interpretation after one or two sentences. The interpreters who advocate for the short consecutive rendition argue that it is more accurate and detail-oriented as the interpreter can easily recall everything the witness stated, and it offers a more dynamic exchange and rhythm between witness and interpreter, which is often needed when witnesses are nervous, intimidated by the process, reluctant to testify, or not very sophisticated. It is true that, for many reasons, some court interpreters believe that they cannot render a long consecutive interpretation (lack of proper training, note-taking skills, practice, etc.)
In general, not speaking of court interpreting, I personally like the long consecutive mode better because it lets the speaker stitch together his thoughts and ideas, and it allows me, as the interpreter, to understand the message better. This results on a better rendition.
However, to determine what is more appropriate for a testimony during a court proceeding, first we need to answer the most fundamental question: Why is it necessary to interpret what was said at the witness stand?
Unlike interpreting the entire court proceedings for the foreign-language speaking parties (plaintiff, defendant, victim) interpreting the testimony of a witness who does not know, or is not fluent, in the language used in court is not done for the benefit of said individuals, after all, they speak the same language as the witness; it is done for the attorneys, and more importantly: for the judge and jury so they can properly evaluate the witness’ testimony and determine if they will believe all, part, or nothing of what the person said. Because the judge and juror do not speak the foreign language, they could not evaluate the credibility of the witness without the interpretation. You see, interpreting for the witness, is an essential part of the process of reaching a decision about the facts of a case.
But understanding the statement of a witness through an interpreter is not enough. In order to assess credibility, judges and jurors must look for, and consider, other clues such as body language, facial expressions, utterances, reactions to a question, demeanor, and others. Sometimes a witness may be saying one thing with his words and a very different thing with all these other clues.
Therefore, judges and jurors must be given a chance to perceive and link all of these clues in real time. A short consecutive will allow them to consider all of these elements as closely to the verbal answer as possible. A long consecutive removes the jury from the moment when the words were said by the witness, making it more difficult to associate all clues and reach a reliable conclusion. Long consecutive will showcase the interpreter’s skills, but will foster distraction as it is difficult for a juror to follow a speech that he does not understand for several minutes. This happened in the defunct League of Nations, a precursor of the United Nations Organization born after World War I. The delegates to the League would speak in their native language and then the entire speech would be consecutively interpreted into a second language, and then into a third language, and so on. Because these delegates did not understand the original speeches, or their consecutive interpretation into other foreign languages, they could not pay attention to the speech itself, and in many cases would leave the session because they knew that the interpretations would also take a long time. Eventually, when the United Nations were founded, this consecutive interpreting practice was eliminated and replaced with the new, technologically more advanced simultaneous interpretation.
It is also true that court interpreters must interpret everything a witness says: false starts, stutter, utterances that may not be a word, redundancies, repetitions, and so on. Remember, the jurors and judges are assessing the credibility of the witness and all of these elements are very important during that process.
When the rendition comes right after the witness’ answer, there is no doubt that judges and jurors will be able to link one of these renditions to the original speech and to the body language. It is also more likely that the interpreter will remember all of these circumstances better when he just heard them a few seconds ago. It is widely held that short consecutive is more precise than a long rendition, and in these circumstances it is more evident. Also, a short consecutive will allow the attorneys and judges to direct the witness to answer a question or to object to an answer more efficiently. It makes it possible for an interpreter to clarify a term or expression with the person speaking from the witness stand.
In my opinion, even though I like long consecutive better, I believe that a short rendition is more appropriate for court.
We still need to determine how short that rendition needs to be.
There are two main tendencies when it comes to short consecutive court interpreting from the witness stand: Those who want an extremely short segment of just a sentence or a couple of phrases, and the interpreters that believe that consecutive interpreting in court should be short, but it also needs to make sense, fulfill its purpose.
During my years of practice in court I saw some interpreters who were busy stopping the witness every other sentence, according to them: for accuracy; according to me: because of mediocrity on the part of the interpreter. I do not believe that you can argue accuracy when faced with a rendition that goes like this:
“…can you please…” stop. Interpretation follows.
“…tell us your name for the record…” stop. Interpretation follows.
Extremely short segments risk the possibility of producing a testimony that nobody can understand, and cutting the witness’ train of thought, resulting in unintended omissions by a witness who can never get to the point of concentration, and that could be very serious.
Short consecutive in court must be long and flexible enough, for a witness to tell part of his story in a coherent, logical fashion where he feels free to finish an idea before having to stop for the interpretation. Sometimes, this can be achieved with a ten second segment, but sometimes the witness may need three or four minutes to share the facts of the case in a way that is clear, complete, detailed, and gives the judge and jurors the necessary tools to evaluate the credibility of that witness.
It is also important to mention that the court interpreter should always allow the witnesses to finish his statement (unless the judge orders him not to). Because of this complex interpretation, that is almost like a dance between witness and interpreter, a good interpreter must talk to the witness ahead of time, explain what is needed to have a good accurate rendition, and in my opinion, the interpreter must be in the proximity of the witness (being careful not to obstruct the view of judge and jurors) so that clarifications, repetitions, and hints as to stop at the end of a segment (maybe through eye contact, a hand signal, or other) can be done without disrupting that rhythm. This is, in my opinion, the main reason why we have not seen the proliferation of two-way simultaneous interpretation from the witness stand. The interpreter needs to be with the witness, not in the booth or somewhere else.
You see, court interpreting is sui generis; it often breaks the rules of other more conventional types of interpreting. It is not just about the message, it is about the credibility of the individual delivering the message, and for that reason, the obvious, the redundant, and the obscene have to be interpreted from the witness stand. I now ask you to share with us your comments about consecutive court interpreting from the witness stand.
July 13, 2016 § 6 Comments
The interpreters’ work is very difficult and complex. We have to prepare for every assignment, pay attention to many details; and on assignment day, we are expected to be on top of our game. Any mistakes, misuse of words, or omission could be critical and carry dire consequences.
We know this. We understand that, as court interpreters we need to do a complete and accurate rendition keeping the correct registry so that the judge and jury can assess the credibility of a witness. We are fully aware of the importance of an accurate and culturally precise interpretation in the emergency room. We know that people go to a conference to learn and be informed; and we never forget that those in attendance have paid a lot of money to listen to the speaker, or were sent by their nation or organization to defend or advance an idea that could affect the lives of millions. This is all part of our job. As professionals we embrace it, and we strive to render interpretations of the highest quality and precision. As interpreters, we also know that sometimes we have to reach our goal under adverse and unfriendly conditions.
The difference between a professional interpreter and somebody attempting to interpret, is that resourcefulness and professionalism let us do our job not just by excelling in the booth, courtroom or hospital, but by anticipating and solving many problems that can arise during a medical examination, a trial, or a keynote speech. We come prepared, and direct clients, promoters, agencies, courts and hospitals know it. This is a fact and we are proud of it; however, we should never take the blame for an agency’s mistake, or take on the burden of solving a situation when it is clearly the agency’s duty to do so.
I know so many cases when good, solid, reliable interpreters have damaged their reputation because they covered up for the agency. In my opinion this is a huge mistake.
As professionals, we should own our mistakes and shortcomings; we should also assist the agency and protect them in force majeure cases and when it does not harm our own interests. This does not mean that we need to fall on our swords for a language services agency.
I am not saying we should rat or snitch. I did not say that we should become an additional problem either. All I am saying is that just as we should own our mistakes, the agency must do the same. The good news is that all reputable professional agencies do. The bad news is that many mediocre organizations find it convenient to blame it on the interpreter to save their behind. This is unacceptable. We are talking about our profession and livelihood.
If something happens to the interpreting equipment in the middle of a speech, we should solve the problem by applying our knowledge, skill and experience. Sometimes a little console or headset adjustment can save the day. On occasion, we will have to leave the booth and interpret consecutively while the tech support team works frantically to fix the problem. This is expected from a top-notch professional interpreter; but let it be clear that we must never assume the liability or take the rap for mistakes of the agency.
Let me explain: If a judge complains that the interpreter is mixing up the names of the parties to a controversy, or is referring to a male individual as female because the agency (or court) failed to provide the proper documentation before the hearing, the interpreter should say so. We need to make it clear that certain things are the responsibility of others. It is their fault, and the powers that be need to know it.
If an interpreter fails to properly interpret a patient’s idiomatic expression because she was not privy to the individual’s nationality, let the physician know that despite your efforts to learn more about the patient and his medical condition, the agency, hospital, or nurse, refused to share that information with you. We need to make it clear that certain things are the responsibility of others. It is their fault and the powers that be need to know it.
If the interpreters show up to an assignment one hour before the conference starts, and they learn that there are no working microphones or headsets in the booth, they need to let the speaker and organizers know. We need to make it clear that certain things are the responsibility of others. It is their fault and the powers that be need to know it. Even if the interpreters decide to start the event with a consecutive rendition, they have to make sure that all interested parties know that it was not their fault, and if they decide to walk away from the assignment, they will be acting according to the law and protocol. They were retained to do a simultaneous interpreting assignment, not a consecutive gig. The agency would be in breach of contract and the organizers and promoters need to talk to them, not the interpreters.
Remember, from the client’s perspective, it is a matter of clarity and education. They need to learn what interpreters are responsible for, and what they are not. From the interpreters’ perspective, it is a matter of professional pride, reputation, and ethics. We will always be judged by our work in the booth, courthouse, hospital, or battlefield. We must never let the assessment extend to the responsibilities of others. This is very important.
Fortunately, this that I write will be a welcome affirmation to all real professional high-level agencies. They know their responsibilities, and they strive, just like we do, to deliver an immaculate service every time they are retained. Unfortunately, this will be read by para-professional wannabe interpreting “agencies” who will feel offended and threatened by the suggestion that interpreters should act professionally while, at the same time, cover their reputation and protect their careers by letting the end-client know that they made a mistake by retaining high quality professional interpreters and a mediocre agency. I now ask you to share with the rest of us your comments on this extremely important subject for the education of our clients and our professional reputation and livelihood.
April 27, 2015 § 6 Comments
I just read a contract that one of the States in the U.S. is asking all court interpreters to sign if they want to continue to work in their system. The document is 38 pages long and it is full of legal terminology, rules, and sanctions that only an attorney can understand. This is not an isolated case. Because of political pressure and budgetary prioritization, court interpreter programs are getting less money from their administrative offices at the state level. In other words: There is hardly any money to pay for interpreting services at the state level in many states.
Although the Civil Rights Act is over fifty years old, it was only a few years ago that the federal government decided to enforce its compliance at the state level in the case of equal access to the administration of justice, regardless of the language spoken by the user of the service. When the federal government came knocking on the door of each of the fifty states, and told their state judiciary to comply with the law or lose the funds they had been getting from the feds, states started to look for a solution to this problem. In reality, up to that moment, the states were complying with the constitutional requirement to provide court interpreters in criminal cases, but in many states there were no court-funded court interpreters available for civil cases and other additional services offered by the courts to the English-speaking population. The message from Washington, D.C. was loud and clear: In order to continue to receive (much needed) federal funds, the states had to provide interpreters for all services they offered, not just criminal cases.
In some parts of the country the first problem was as simple as this: There were not enough certified court interpreters to meet the legal requirements; in other regions the problem was slightly different: There were plenty of certified interpreters, but the courts were not willing to pay the professional fees commanded by these (for the most part) top-notch interpreters in that state. These professionals had been there for years, but due to the low fees paid by the state court system, they were not even considering the state judiciary as a prospective client.
When faced with this dilemma, a logical and ethical option should have been to develop a program to encourage more young people to become certified court interpreters, train them, and then test them to see if they could meet the state-level certification requirements, set years before and universally accepted as the minimum requirements to do a decent court interpreting job. Some states’ needs could be met this way, but not all of them. For that reason, a second logical step would have been to raise the professional fees paid to court interpreters in order to entice those top-notch interpreters, who were not working for the courts, by making the assignment profitable and attractive. Finally, for those places where this was not enough, state courts could have used modern technology and provide interpreting services by video or teleconference. Administrative offices had to develop a plan, categorize the services offered and decide which ones required of an experienced certified court interpreter, find the ones that a brand new certified court interpreter could provide, and select those instances that, because of their nature and relevance, could be covered remotely by a certified court interpreter elsewhere in the state or even somewhere else. This process also needed that state court judges and officials acted within the constitutional system and asked their respective legislatures for the funds to comply with the federal mandate. It is doubtful that legislatures would risk losing federal funds by not approving such monies; and in those cases where the local legislators would not grant more funds, state court administrators and chief judges needed to do their job, and truly provide equal access to justice to all by reorganizing priorities, and perhaps sacrificing some programs, even those that were near and dear to a judge’s heart, in order to find the funds needed to meet this priority that is above most others, not just because of the federal funds that the state would lose in the event of non-compliance, but because those in charge of the judiciary should consider equal access to justice a top priority, and I really mean at the very top.
Unfortunately, my dear friends and colleagues, most states chose an easier way, even though it did not deliver what the Civil Rights Act intended. They decided not to rock the boat with the legislature and play it safe, they decided not to make true equal access to justice a priority by recruiting and training quality certified court interpreters, instead, they opted for ignoring the excellent professionals in their area by not raising interpreter fees, thus making the assignments profitable to professional interpreters. They decided to come up with a “plan” to keep the federal money in their accounts by making believe that they were complying with the federal mandate of equal access to justice. This is what many of the states decided to do:
Instead of recruiting and training new certified court interpreters, they decided to create a group of paraprofessionals who would “deliver” interpreting services. These individuals were drafted from the ranks of those who had always failed the certification exams, and by recruiting bilingual individuals with no interpreting knowledge whatsoever. States justified their decision by arguing that these individuals would receive the necessary “training” to interpret in certain scenarios of lesser importance, where people who had partially passed the certification test would be considered as professionally qualified (semantics vary from state to state but it is basically the same) even though in the real world they should be deemed as unfit to do the job. Moreover, bilinguals would be trained to “assist” non-English speakers with some administrative matters in the courthouse. Of course, this brilliant decision would set the profession back to the good old days when prevailing judicial culture was that knowing two languages was all you needed to interpret in court; but that was of little importance when balanced against the possibility of cancelling a court program that was politically useful to a judge or an administrator. This is how the “warm body next to the court services user so we don’t lose federal funds” theory was born. The spirit of the law was ignored.
There is as much quality and true access to the administration of justice when a person who failed the court interpreter certification test, or a bilingual court staffer, interprets for a non-English speaker individual as there is medical knowledge when the guy who failed the medical board sees a hospital patient, even if the appointment is to take care of an ingrowing toenail.
Of course, the process above taught court administrators a valuable lesson: court interpreting services was a good place to save money, a wonderful way to channel budget resources somewhere else, and a great way to avoid antagonizing the state legislature, because there would be no need to ask for more money to fund the program. This was the origin of the next step backwards: Fee reduction.
Court administrators did not stop here. They now knew that they could get away with more, so they decided to lower interpreter fees. In most cases the reduction did not come as a lowering of the fee itself; it was accomplished by cutting guaranteed hours, reducing mileage and travel reimbursement, changing cancellation policy, and by creating a new bureaucratic machinery designed to oversee what interpreters do minute-by-minute. Maybe it should be referred to as “to spy” instead of to “oversee”.
Fast forward to today, and you will find these huge interpreting services contracts in many states. The reason for them is not that court interpreters all of a sudden went bad and stopped doing the good work that they did for decades; these contracts are motivated by more reductions to the interpreters’ fees and by developing this super-protection for the state, leaving the freelancer with little or no defense before potential abuse by the court administrators. What other justification can these state contracts have when the federal court interpreter contract is a very short agreement, which usually does not change from one fiscal year to the next, and is drafted and developed individually by every federal judicial district?
These state contracts that court interpreters are expected to sign without the slightest objection, have been drafted by the administrative office of the courts’ legal departments; they have been amended to include any possible ways to reduce the interpreters’ real fee that the states missed when drafting last year’s contract, they include sanctions to interpreters who do not comply with sometimes ridiculous duties, without setting any process of notice and hearing; they are written in a complex style full of legal terms and ambiguity that only an attorney can understand.
I am very fortunate that I do not need to sign one of these contracts, as state courts have not been my clients for several years; but it concerns me, as a defender of our profession, that my colleagues may sign these documents out of fear or hopelessness. I invite all those court interpreters who have been, or will be asked to sign one of these agreements in the next few months, before the new fiscal year starts in July, to seek legal representation. It is your professional career, it is your future. I believe that state (and national) level professional associations should negotiate a deal with a labor relations or civil law attorney, where services would be provided at a lower fee, and offer it as a benefit to their members. In fact, I would like to see all interpreters who are members of a state or regional professional association present a common front and negotiate these contracts with the state administrator. As state court interpreters we need protection, because if we do not act, we will continue to move backwards. They already told many of us that there is no money and they blamed it on the state legislature, now we know that perhaps they did not try to protect the interpreter program no matter what.
They are paying you less, making your work conditions very uncomfortable, they already took some of our work away and gave it to mediocre cheaper paraprofessionals. All professionals negotiate the terms of a contract, and before they reach an agreement, they have the benefit of legal representation. The administrative office of the courts is represented by their attorneys; interpreters, like all professionals, should at least be represented by an attorney before they sign a new agreement. I now ask you to comment on this situation and the ways to recover what we had already achieved in the past, so we can move forward, and for the first time fully comply with Title VI of the Civil Rights Act.
December 9, 2013 § 6 Comments
Unfortunately this topic is not new to anyone. It seems like we have been listening to the same complaint for many years, but during the past few months I have heard and read enough disturbing stories to decide that it was my time to contribute my two cents to the defense of our colleagues: the real professional court interpreters. Before I continue, I must clarify that this posting refers to Spanish language court interpreters. I recognize that interpreters in other languages are in a different situation as they do not have a federal certification program in the United States. That is an issue for a separate blog post.
I learned that there are federal district courts in the Southern and Midwestern States where the federal court interpreter certification is not “required” to interpret a hearing or even a trial. I was told that there may be other federal courts elsewhere in the United States where they also follow this practice. I have to confess that I have been very lucky to live and work in places where this has never been an issue. In fact, I live in a city where I have never even met non-certified court interpreters. The Federal Court for the Northern District of Illinois provides federally certified court interpreters for all of its cases.
The most common complaints that I have heard from certified interpreters is that these courthouses have clerks, administrators, and judges who don’t see the need to hire federally certified interpreters because they think they are too expensive, it is too difficult to get them, or because they are happy with the services provided by non-certified individuals who have been providing their “services” to these judges. There is a federal district courthouse in the Midwest that hires one certified and one non-certified interpreter to work their trials. Fortunately, most certified interpreters refuse to work under these circumstances. Unfortunately, this courthouse then hires two non-certified individuals. Their argument is that it is cheaper and the non-certified individual has a state court interpreter certification. Another courthouse in the South routinely hires non-certified interpreters under the explanation that their judges like these non-certified individuals who have been doing “a good job” for many years. There is a federal district court judge who states on the record at the beginning of a hearing that the Spanish speaker is being assisted by a certified interpreter, without giving opportunity to the federally certified court interpreter to enter her appearance on the record by clearly stating that she is federally certified. This way the judge, intentionally or unintentionally (we don’t know) makes it impossible for the certified interpreter to separate herself from the non-certified individual. In fact, because of this maneuver, I heard that some attorneys that have appeared before this judge for many years are shocked when they learn out of court that the “other” individuals appearing in court are non-certified.
I would like to think that most of these situations arise from the lack of knowledge among judges and court staff. Many of them do not know the difference between a federally certified court interpreter (the ones who can appear in court) a state certified court interpreter, and non-certified individuals who just happen to accept assignments knowing that they are not supposed to.
For the benefit of some of you who might be reading this article, and with the hope that some of my colleagues may share the following information with judges, clerks, attorneys and others, I will touch upon some of the basic differences between a federally certified court interpreter and a state certified interpreter.
According to the Court Interpreter Act, the Administrative Office of the United States Courts shall establish a program to facilitate the use of certified interpreters in judicial proceedings instituted by the United States (28 USC § 1827) To fulfill this mandate, the United States AOC has developed a certification program that all Spanish interpreter candidates must pass to be certified. The certification program is administered in two parts: a written exam to test the true bilingualism of the applicant who has to pass (with a minimum score of 80) each of the two sections: English and Spanish. Those who pass this first stage must wait for a full year and then take the oral exam that consists of difficult exercises to test the examinee’s interpretation skills, legal terminology and comprehension, and language proficiency. To pass this test a candidate must score a minimum of 80 on each of its 5 sections: sight translations from English into Spanish and Spanish into English, two simultaneous interpretations at very high speeds: one a monologue and one a dialog, and a lengthy and complicated consecutive interpretation. Passing rates for this very difficult exam are among the lowest in any professional field.
A person can become state certified after meeting the requirements of that particular state. The format and minimum scores vary depending on the state. Some require a written test, others do not. Some offer a written test on the basics of the legal process, others require prove of bilingualism. The oral test can be the same in different states as they all use the services of the National Center for State Courts (NCSC) but the way the test is administered and graded is different from state to state. Some states let the applicant take the oral exam by parts (first the simultaneous exam and maybe months later the consecutive and sight)
Of the many differences between the federal certification program and the states’ programs, perhaps the most important are the content of the exam and the minimum scores required to pass it. State exams have fewer sections than the federal test. They do not have a simultaneous interpretation dialogue, the simultaneous interpretation exercise is offered at a lower speed, the sight translation documents are not legal, but paralegal documents, and the subject matter of the exercises is based on topics that are under the jurisdiction of a state court. The minimum score to pass a state certification exam is 70. Some states allow that examinees retest only on those sections where they got a failing score. The passing rate for the state court interpreter examination is far higher than the federal rate. In fact, there are many state certified court interpreters who have repeatedly failed the written and oral federal certification examination. As you can see, there is a significant difference between these certifications. It is important to mention that for federal court purposes a state certified interpreter is a non-certified interpreter.
The federal court interpreter program exists because of a constitutional mandate. The VI Amendment of the United States Constitution states that: “In all criminal prosecutions, the accused shall enjoy the right to… be informed of the nature and cause of the accusation; to be confronted with the witnesses against him… and to have the Assistance of Counsel for his defense…” (Amendment VI. 1791)
The Court Interpreter Act clearly states that: “…Only in a case in which no certified interpreter is reasonably available as provided in subsection (d) of this section, including a case in which certification of interpreters is not provided under paragraph (1) in a particular language, may the services of otherwise qualified interpreters be used…” [28 USC § 1827(b)(2)]
Looking at the statute you can easily conclude that the courts are obligated to seek the services of federally certified interpreters. There were certified interpreters ready and able to work in all the cases I have mentioned in this article. It was the clerk or the judge who preferred to use the non-certified individuals.
Even smaller federal district courts now have access to federally certified court interpreters through the federal judiciary’s Telephone Interpreting Program (TIP) The TIP, available nationwide, allows an interpreter at a remote location to deliver simultaneous interpretation of court proceedings for defendants and consecutive interpreting for the court record by means of a two-line telephone connection. This program has been very successful and has kept the highest quality of interpretation in the courtroom.
It seems to me that after reading this posting, all federally certified court interpreters who are ignored or passed over by a courthouse, and later find out that a non-certified individual has been hired to “interpret,” should be able to explain the legal reasons not to do so. Unfortunately, sometimes this may not be enough. All federal judicial districts are independent. They make their own decisions. All federal district court judges are appointed for life. When an explanation is not enough to change a bad habit, there are other means to achieve the desired results.
When faced with the situation above, the interpreter should talk to the defense attorney and express his concerns about the defendant’s constitutional rights being violated. The V amendment indicates that: “No person shall… be deprived of life, liberty, or property, without due process of law…” (Amendment V. 1791) For a person to have due process there has to be legal representation. A defendant cannot participate in his defense unless he understands the charges against him and confronts his accusers. This is impossible if he cannot communicate with his attorney (See Amendment VI 1791 above) It is important to make it clear to the defense attorney that because of this violation of the defendant’s constitutional right to a due process, there are grounds for a dismissal, or at the least for an appeal, even before the trial takes place.
As far as the non-certified individual who is working at the courthouse, even with the blessing of a judge, there are several things that can be done: When the individual states that he is certified, or when the judge states on the record that this person is certified and the “interpreter” does not correct the record, there can be consequences if this person has a state certification. This should be brought to the attention of the state agency that oversees the performance of state certified interpreters. This lack of moral character could be grounds for a suspension or even a revocation of the state certification. Remember, state certified court interpreters are (state level) officers of the court.
There are also certain things to be done when the individual does not have a state certification. If at the beginning of the hearing, or at any time during the process, this person was placed under oath or affirmation and indicated that he was certified, or even if he remained silent when the judge or the clerk put him under oath as a certified interpreter, he may have committed perjury or at least misrepresentation and therefore he could be prosecuted for this crime. This individual could also be subject to other sanctions depending on the state where the act was perpetrated. Practicing a profession without a license or certification could be a misdemeanor in some states. The person may be subject to jail time or at the least to a fine.
Finally, the non-English speaker defendant or his dependants may be able to sue the “interpreter” for damages caused by him as an individual who provided a service without having the certification to do so, and perhaps committing fraud or inducing the error at the time of celebration of the professional services contract. If the non-English speaker thought that this individual was certified, there was no “meeting of the minds” and therefore the contract wasn’t valid; this means that he can sue the “interpreter” for damages and he may not have to pay him for what he did. This is a good remedy for those who appear in court pro-se.
There are many resources to right a wrong. The first step should be to try to educate the bench and bar. I encourage you to speak before the defense bar and the assistant U.S. attorneys. Make sure the court knows that all these resources exist; that they can use TIP. Always remember: you need to make sure they are aware that you know what is required, and that they know that you are willing to campaign for the use of certified interpreters in your district. Please share with the rest of us your experiences with non-certified interpreters and what you did to fix the situation in your federal district court.
July 8, 2013 § 11 Comments
Last week I posted my first five worst things an interpreter can do to another interpreter. Next, I share the rest of my list in the understanding that there are plenty more examples of these “worst things,” and inviting you to review my top ten, tell us your “war stories” and share your comments and solutions with the rest of us.
Here we go:
- To be a bad interpreter. The individuals who have worked as “interpreters” for many years and even decades, don’t know anything about the profession, don’t care to know anything about it, and are revered by some as “interpreting gurus.” We all know who they are, where they are, and how they work. They represent a cancer to the profession because they go around providing a deplorable service, often charging good money, and damaging our collective image. Most of the time they work in a parallel universe and we rarely encounter them, but when we do, our job can be a disaster as we are faced with a situation where we have no partner to consult, no colleague to collaborate with, and no professional to back us up. A quick remedy when faced with this situation in the booth or the courthouse is to set the rules straight and ask this person to support by doing certain chores that you will assign. When possible, it would be best to postpone the event, even for a short while, in order to find a replacement for the bad interpreter. There is no solution to the bad interpreter problem described in this paragraph. It is terminal.
- To take advantage of your partner. The interpreters who do not pull their own weight during an assignment and interpret less than the time previously agreed to; do not return to the booth or courtroom on time for the switch, and those who do not help with the preparations: research, development of glossaries, or assignment of tasks. These are the people nobody wants to work with because there is never a feeling of team interpreting during the event. A quick on-the-run solution may be next to impossible, but you can at least talk to them before or during the assignment and voice what you expect them to do. As a long term strategy it is best to avoid them in the future, always declining a job offer by explaining the reasons why you would love to interpret the conference or trial, but with a different partner.
- To try to be the “center of attention.” This is a very real and unfortunate situation that happens more often than you think. Some colleagues believe that all events: conferences, court proceedings, surgeries, military interrogations, business negotiations, and diplomatic debates, revolve around the interpreter. They truly believe this to be the case and refuse to understand that we are an important, even essential part to the process, but we are not, by any stretch of the imagination, the “main event.” Here I am referring to those embarrassing moments when your partner stops everything that is happening and hyperventilating informs those present that the event cannot go forward at this time because one of the three hundred people in the auditorium has a receiver that is malfunctioning, and after the batteries are replaced and everything is “fine” once again, he or she asks the dignitary who is speaking, and on a very tight schedule, to “repeat the last thing you said so that the person with the receiver with the dead batteries doesn’t miss a word” and then goes on explaining what his or her duties are as an interpreter. I congratulate you if you have never gone through one of this, but surely you have worked with somebody who complains all the time and interrupts the speaker over and over again: “Excuse me…the interpreter could not hear the statement because the speaker is speaking away from the microphone…” “…excuse me, the interpreter requests that the speaker move over to the right so it is easier to hear what she is saying…” “…excuse me… the interpreter requests that the speaker slows down so that everything can be interpreted…” A nightmare! As an instant solution to this problem you should talk to this interpreter and explain that the participants are very important busy people who have very little time to do this; that as interpreters we should try to adapt to the circumstances, and that we are important, but by no means the most important part of the process. A long term solution depends on the individual interpreter. Your colleagues often mature and grow out of this “self-centered syndrome.” They will be fine. For those who never change and adapt, the solution will have to be up to you. It depends on how patient you are, how much you value the participation of this particular interpreter, and how well you know your client. No easy solution, no “one size fits all.”
- To publicly correct and criticize other interpreters. Those know-it-all interpreters with very little social skills and less discretion who vociferously utter vocabulary and terminology from one end of the room to correct what they think was a bad rendition, and sometimes not happy with this, are happy to show even more disrespect to a colleague by loudly stating the reasons why they are right and you are wrong. It is very difficult to find anything more unprofessional than these actions. It is true that team interpreting exists so that colleagues can work as a team and cover each other’s back; it is also a fact that we all make mistakes and that sometimes we do not notice them. A benefit of having a partner in the booth or courtroom is that we can improve our rendition, and in court interpreting even correct the record, by stating our error or omission. However, decency and professionalism, together with a touch of common sense, tell us that there are better ways to correct a colleague or to offer an opinion that have nothing to do with screaming and yelling. A simple note, sometimes a stare is enough to get your partner’s attention. When faced with this situation the thing to do short-term is to stay quiet, keep your cool. Let it be forgotten by those who witnessed your partner’s crude behavior. Then, at the earliest possible time, always as a professional well-mannered individual, confront him; let him know that this is unacceptable, and that you expect this will never happen again. Do not let him get away with it. A long-term solution would be to avoid this “colleague” like the plague.
- To interpret in a way that hurts your partner’s rendition. First we have the colleague who is too loud. So loud that you cannot concentrate. I am talking the kind that makes the booth vibrate when he speaks; the one you can hear better than your booth partner even though he is interpreting two booths away, and second, we have the interpreter who is very slow during relay interpreting to the point that all the booths waiting for the relay start thinking about doing a direct interpretation even if the source language is not their strength. Short term you need the loud interpreter to concentrate in his volume and long term you need to help him or her find out the reason for this loud rendition. Many times people who speak loud cannot hear very well. Maybe the long-term solution will be a hearing aid or a special set of headphones. The solution in the relay interpreting case can only be to endure for the day or until adequate replacement can be found. In the future this interpreter should not be used for relay interpreting situations. There are many excellent interpreters who cannot adapt to the pace of relay interpreting. There is plenty of work that does not involve relay interpreting where a good interpreter is needed.
As you know, this is only the tip of the iceberg. Please review these “ten worst” and if you are up to it, I would love to read your top ten, top five, or even top one. This should be good…