Lack of understanding, common sense = constitutional conflict in court?

November 12, 2018 § 1 Comment

Dear colleagues:

I recently learned that some federal district courts got involved in the way federal prosecutors pick their interpreters for hearings. I have practiced in federal court for many years, and the decision on who will interpret for the office of the United States Attorney has always been left to the prosecutors who know the case better than anybody else. This means they, and their prosecutorial team of paralegals, investigators, detectives, and law enforcement agents, know the language complexities of a particular case, and therefore, better equipped to decide who they need for that interpreting assignment.

I do not dispute that some districts, because of a lack of federally certified court interpreters, or out of plain ignorance, have never tried a case where the assistant U.S. attorneys (AUSA) have their own interpreters for a trial. Some districts are so small, the AUSA office does not even have a staff interpreter. Some districts are so remote, that even the court tries cases with unqualified court interpreters (usually certified or accredited at the state level) because it is next to impossible to get somebody to the courthouse. Evidentiary hearings and trials require that an interpreter be physically present at the hearing. Remote interpreting is not a viable option for these proceedings.

That some have always followed this practice does not make it right, and courts in districts in urban centers where federally certified court interpreters are available have no reason to inject themselves in what should be an internal process of the Department of Justice. Let me elaborate:

The American legal system, and all legitimate legal systems in the world, are based on an independent judiciary free to decide with no pressures or fear of retaliation. The United States Constitution recognizes and enshrines this principle through the separation of powers. The Executive Branch of the federal government originates from Article 2. The Judicial Branch stems from Article 3.

With administration of justice in a criminal case, all individuals in the United States have the rights and protections established by the Constitution and secondary legislation; mainly, the right to a public and fair trial by their peers, starting with a presumption of innocence, charging the Executive Branch of government, through the United States Department of Justice, with the burden of proof, beyond reasonable doubt, in an orderly regulated process, presided by and controlled by the Judicial Branch of government. To put it simply: Because the government cannot be judge and party, it is an agency from outside the Judicial Branch, in this case the Justice Department, who prosecutes the case on behalf of the U.S. government, including the citizens that the government must protect from the bad guys.

We can see that having the burden of proof is no small task. Federal prosecutors must investigate de facts, test and evaluate the evidence found, and prepare a case that will persuade the jury and judge of an individuals’ guilt beyond reasonable doubt. If successful, the Justice Department will meet its duty to protect society. This is no easy task; it also means that individuals will lose their assets, their freedom, and even their life.  A prosecutorial team must have the best team available to fulfill its function, and that is extremely difficult.

Federal prosecutors must call witnesses to testify in the trial. When these witnesses do not speak English, their testimony must be interpreted into English to benefit the defendant, the defense attorneys, the judge, and the jury. It is only then, after the rendition of the interpretation, that the defendant will have exercised his constitutional right to confront the witness or accuser. It only after the rendition that a judge or jury can assess the credibility of the witness. It is this time they will decide if they believe all, part, or nothing of the witness’ statement.

But most of the work is done before the witness steps in the courtroom and takes the stand. Prosecutors and their teams test, evaluate, and prepare their witnesses before a trial. Questions are asked many times, in many ways; adjustments are made. Not to influence testimony, but to present the truth clearly to the trier of fact (judge or jury). Usually the testimony of the witnesses for the prosecution is very complex, specialized, scientific. Dense concepts and sophisticated terminology must be interpreted into English during the trial; cultural concepts must be clarified before the final rendition (many expert witnesses come from abroad just for the trial); legal systems compared so the accurate term in the target language is rendered by the interpreter. Leaving loose ends is not an option: The prosecution must prove, and the standard could not be any higher: beyond reasonable doubt. Prosecutors and their teams, assisted by the interpreters, go over the testimony with every witness as many times as needed. These interpreters must research, study, practice, develop a common glossary for each testimony. The witness gets used to that team of interpreters and the interpreters get used to the witness.

The interpreters for the prosecution know the case, they are familiar with names, dates, places, and other key information that must be interpreted with accuracy. From gang slang, to amounts of drugs, to family relationships. It all needs to be well-understood so the interpretation heard in trial is accurate, pristine, and truthful.

Confidentiality is essential to our justice system. It lets the parties tell the truth to their attorneys so they can represent, in a criminal case, a defendant or society with full knowledge of the facts. Confidentiality is also very important when it comes to the lawyers’ strategy. Prosecutors and defense attorneys develop a strategy to win a case. The interpreters for the prosecution know the strategy and facts, and they are covered by the veil of secrecy. Using a court appointed interpreter to interpret for the prosecution generates a conflict of interest. You cannot be judge and party simultaneously. Even the most professional, trustworthy interpreters should never be placed in such situation. The sole appearance of conflict is enough to cast a shadow on the proceedings. Client-attorney privilege only exists when there is an expectation of privacy. How could this be argued when the same interpreter hears all confidential details?

The independence of the prosecutorial interpreters is so important, that even their payment differs from that court appointed, public defender, and Criminal Justice Act (CJA) attorney interpreters receive.  I am not referring to staff interpreters, I am talking about independent contractors retained to work in a case. While interpreters for the court, public defender, and CJA attorneys are paid through the judicial system (Judicial Branch of government) interpreters for the prosecution are paid by the United States Department of Justice (Executive Branch). The funds come from different budgets to assure independence, absence of conflict of interests, and separation of powers. The Office of the United States Attorney pays better that the courts, and unlike the latter, fees are negotiable between the parties (interpreters and AUSAs). This can also be relevant if you think that most more experienced, better trained interpreters would rather work for the prosecution, leaving a smaller pool of top-level interpreters to work for the courts, and increasing the risk of an inaccurate rendition of a prosecutorial witness’ complex testimony during the trial.

The widely, and constitutionally backed, practice of having a separate interpreter team for the prosecution in federal cases must continue as long as we have separation of powers, and a system where one party has the burden of proof. There is no rational justification for this practice by the executive branch of government, to be changed by court staff, from a different branch. Such decisions are being made in courthouses where none of the issues above were given any thought, where prosecutors did not reflect on the implications of such changes, and a decision was unilaterally made, perhaps due to a lack of understanding that lead to this policy deprived of common sense. If the decision at these district courts was made unilaterally, we have a separation of powers issue; if it was decided for monetary reasons, remember that interpreter fees are paid from two budgets (executive and judiciary); if it was decided to avoid comparisons between experienced prosecutorial interpreters, and perhaps less qualified court appointed ones, it was motivated by unethical reasons and it shows a disappointing level of professionalism; and if this was a joint decision by the courts and AUSAs in some districts, they must address the conflict of interest and at the least the appearance of conflict.

Our legal system has been around for 250 years. It has organically adjusted its parts to observe the fundamental democratic principles, starting with an independent judiciary, a separation of powers, and the rights and protections to the individual and society. In today’s world where many things that were, are no longer, let’s hope this is not changed by the capricious decision of a few. I invite you to share your thoughts on this issue.

No matter how well-prepared you are, be ready for the unexpected.

April 16, 2013 § 7 Comments

Dear colleagues:

Some months ago I interpreted in a high-profile federal criminal trial that involved very complex issues. Because of the difficult terminology, topic, and importance of the assignment, the colleague that worked as my teammate and I did copious research, studied the subject matter, and developed glossaries and a bibliography. It took months of professional preparation and I believe that we did a very good job. As we interpreted for witnesses during their preparation before trial and we bounced concepts and terms back and forth to develop uniformity and correct any mistakes, I grew pretty confident that we were ready for this assignment.

Once the trial started everything went smoothly for us as interpreters. As we were getting the job done as expected and beyond, it was time for the experts to testify. These expert witnesses were coming from another country, which added an extra layer of complexities to their testimony. It was not just a matter of specialized concepts and terminology; it was a matter of adjusting to a different culture and idiosyncrasy that the experts showed during their testimony preparation. We fully understood this added “curve ball.” Experts testify in the way they feel more comfortable with, and the interpreter should not even suggest that they modify that.  We just had to be on our toes as experts from other countries, for cultural and language reasons, tend to be more formal and solemn than their American counterparts.

I was feeling pretty confident that all preparations and hard work had me ready for the task, so the day when this expert had to testify finally arrives and the expert takes the stand. After some minutes of smooth sailing, he finally dropped the first “interpretation bomb” as he rendered his testimony ceremoniously using words and terms he had not used before. All our research and study did not cover this unexpected lingo.  What did I do from the witness stand at that moment when I heard the first of these words, realized that I had not studied it before, turned back to where my teammate was seating behind me just to see her furiously looking through all the materials we had at our station, and saw the face of the attorneys, judge and jury all waiting to hear my rendition of the answer? First I kept my cool, second, my brain went to work trying to find any coherent contextual meaning to what the witness had just said in Spanish, and third, I opened that “brain vault” where the Latin I studied ages ago had been stored away for decades. All of these brain functions and actions happened within a fraction of a second. All of a sudden, to my absolute surprise, and that of my colleague as well, the correct English version of the term just came out of my mouth! At that time I experienced the same thing that many interpreters and translators have during their careers: a word that I did not know I knew came to the front of my brain and got me off the hook.

These type of testimony continued for days until the expert finished testifying, but from that moment, my teammate and I realized that studying for the assignment is essential, but as important as that part of your preparation may be, you also need to bring other tools to the table: The interpreter needs to be calm, focused on the task, confident that his memory will click at the time it is needed and confident that the other member of the interpretation team will have his back. However, even after all of these elements, the interpreter has to be aware that there are other resources at hand: he can ask the witness for a clarification, or he can just leave the word in the original language (or in Latin if that is the case) As interpreters we just know when it feels right to leave a word in the source language. It is a gut feeling.  Keep in mind that if you did not understand a word or a term, even after all the research and preparation you did, it is likely that the judge, jury and attorneys do not know that term either. Finally, remember that the expert is that: an expert. He is used to people asking for clarification and explanations when he testifies. No matter how well-prepared you are the expert will always know more than you. Everybody knows that; the only things you do know that he does not are the two languages and how to interpret from one to the other.  Please post your comments and maybe your war stories about those instances when you faced a similar situation in the booth, the courtroom, or the hospital.

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