Attention interpreters: Butcher or Surgeon?
October 5, 2015 § 2 Comments
For many years I have devoted a considerable part of my time and efforts to promote, develop, and defend the professionalization of our interpreting services. There have been many times when I have been left with no other choice but to fight against the usual forces that tend to diminish, manipulate, and erode our profession: Greedy agencies who want to hire anybody, regardless of skill, knowledge or qualification, if this move will translate into a greater profit; Ignorant clients who cannot see the difference between speaking a foreign language, and actually interpreting to and from it; Self-serving bureaucrats who care about nothing other than their petty jobs and the opinion of their superiors within their sad organization; and mediocre “wanna-be” interpreters who constantly try to lower standards and expectations in order to fit in the ocean of cynicism and falsehood where they swim portraying themselves as professional and apt individuals, disregarding the nefarious consequences that their devastating services will undoubtedly cause those for whom they “interpret”.
Interpreting is the oldest bilingual profession on earth, but its modern version is relatively new all over the world. Because of historical and empirical reasons, some fields of interpretation have developed faster than others, and for the same reasons they are better regulated, known, and respected by both individuals in the field of communication, and the population at large. In some parts of the world interpreting services have been part of the legal process for centuries, and due to current tendencies, globalization and commercial relations among all nations, their services are among the better-known and more strictly regulated interpreting services.
In the United States, Europe, and many Latin American countries, oral adversarial legal proceedings and intense trade have produced the certified, licensed, qualified interpreter who has passed through some knowledge and skill assessment process, and complied with legal, ethical, and professional requirements. Many of them have the benefit of a formal professional education as interpreters, attorneys, or other law-related fields which allow them to learn and understand highly sophisticated concepts and the complexity of the legal process. Because of the subject matter they have to work with, the magnitude of the consequences of those acts and proceedings they participate in as interpreters, and the legally established and sanctioned certification process to be able to work, these individuals are considered by the legislation not only professional service providers, but professionals of a specialized discipline: These interpreters practice legal interpreting.
It is important to keep in mind that not all legislation and systems are at the same developmental level, and even the most evolved ones are far from satisfactory; they do not cover all scenarios or proceedings yet, but they constitute a series of steps in the right direction, and reflect the efforts of hundreds of interpreters, legal experts, administrators, activists, and others who have fought very hard to get to the place where we find ourselves now.
In the United States, interpreting services in a legal proceeding are constitutionally required in all criminal cases, and thanks to the Civil Rights Act, they are mandated in all other proceedings where the federal government is financially involved. There are currently several states that have also incorporated this essential service into their own legislation.
The nature of the services rendered by the interpreter in a legal context are professional as they are linked to the practice of the law by attorneys, judges and other officers of the court. Attorneys cannot practice law without a license, patent, or certification that allows them to present themselves as lawyers, and provide legal services such as advice and representation to their clients. Judges have to meet many requirements to be able to do their jobs as well. There is no doubt that it is for this reason that legal interpreters are required to be certified. Just as the attorneys, in the United States an interpreter can be certified at the state or at the federal level.
Attorneys, judges, and their interpreters deal with matters that can impact the life, freedom, pocket, or reputation of an individual. This makes them a very special group: They are subject to rules and canons no other professionals have to observe. It is so important, that nobody can practice law without first been admitted to the bar, (http://www.americanbar.org/content/dam/aba/migrated/cpr/model-def/model_def_statutes.authcheckdam.pdf) and those who violate the law are subject to penalties that can go from a fine to the loss of freedom. It is a crime to practice law without a license (http://apps.americanbar.org/publicserv/immigration/notario/california.pdf). In the United States, with some exceptions that we are working to eliminate, court interpreters must have a certification or license to be able to provide their services in court when interpreting to or from a language that is part of that state’s certification program. Dear colleagues, this is extremely important, because it is an essential step in our road to full professionalization and recognition of the profession.
Court interpreter certification programs and legislation have a long, long way to go, but so far we have been moving in the right direction.
As an attorney, when I used to practice law, there were few things that bothered me more than to find out that a non-lawyer was practicing without a license and hurting people. These individuals exist. They are out there, preying on the most vulnerable communities, among them, those who cannot speak the language of the country where they live. There have been many cases of “notarios” busted for practicing immigration law without a law license. I applaud the efforts of the attorney bars and government agencies who are constantly looking for these predators.
I have not practiced law for a long time, and during all these years I have felt the same way every time I see someone who is not certified to interpret in a legal setting. Unfortunately, the response from professional associations and government authorities has not always been the same as in the case of “wanna-be attorneys”, but there has been progress.
That is why it really bothers me that some are trying to undermine this quest towards professionalization by diminishing the importance of the practice of legal interpreting and by proposing solutions that do not match the legal system philosophy nor satisfy the needs of the parties involved in a legal dispute. Individuals moved by greed, ambition, or perhaps mere lack of knowledge of the practice of the law have suggested, and are trying to implement, the notion that “not all legal interpreting requires of a certified court interpreter”. They have erroneously concluded that Article 1 courts do not need of the services of a certified court interpreter, and that many legal acts that involve attorneys and legal advice should be left to community interpreters who will have a different set of skills and a lack of knowledge of substantive and adjective law, including the rules of evidence. In other words: instead of joining in our struggle to achieve excellency in all fields of legal interpreting by preparing, training, and certifying as many court interpreters as necessary, they have decided to set back our fight for professionalization by arguing that less-prepared interpreters will meet the requirements to practice in legal settings that are outside Article 3 courthouses. They are playing a very dangerous game. Let me explain:
Currently in the United States only court proceedings before an Article 3 court are required to use the services of a certified court interpreter (if certification into that language is available) Article 3 courts are those that are part of the judicial branch or a government (federal or state). Unfortunately, as of today, Article 1 court proceedings do not require the services of a certified court interpreter (if certification into that language is available) at the federal level and in many states. Article 1 courts are those that are created not by the federal or state constitution, but by congress or a state legislature and are part of the executive branch of government (usually with a degree of independence). They are commonly known as “Administrative Courts”. Some examples would include, at the federal level, Social Security Hearings and Immigration Courts (EOIR) and at the state level, the most common administrative courts are Worker’s Compensation Courts. Articles 1 and 3 refer to the articles of the U.S. constitution.
Those in favor of de-professionalization of court interpreting by lowering the requirements needed to work in a legal setting argue that certification only exists for “court interpreting” and not for “legal interpreting” and that administrative courts are less formal than Article 3 courts. For this reason, certified court interpreters should not be necessary. They also argue that many of the services provided by an attorney are more “community interpreter-related”, making community interpreters better equipped to assist the attorney’s client, as they are more apt to provide feedback to the attorney about cultural nuances than a court interpreter who is very rigid and strict due to the formal court setting training they receive. This is scary and far from the truth.
The first argument that administrative hearings are less formal than a hearing before an Article 3 judge are nonsense. It is true that the proceedings are more relaxed and not as rigorous in an administrative courtroom, but the rules of proceeding and evidence still apply. Attorneys and judges still argue the law, and legal theories are presented with pro and con arguments by the litigants. Because of the complexity of all of this, and because of the importance of what is being decided, all those lawyers appearing before an administrative judge have to be admitted to practice law in the jurisdiction where they are providing their services. A law student who does not pass the state bar is as barred from practicing law in an administrative court as he or she is in any court of the judicial branch of the government. Administrative judges are also attorneys and receive special training to be judges. Both, attorneys and judges are professionals; we are professionals too. Only certified court interpreters should be allowed to practice in administrative hearings. The complexity and sophistication of the issues before the court require of a professional specifically trained in the legal field to interpret. Nothing less in acceptable. How can somebody interpret something he or she does not understand?
The second most common argument is that current legislation does not require of a certified court interpreter for those legal services that happen outside the courthouse. It is true that the current law is not clear in this regard, but that does not eliminate the need for a competent specialist who is familiar with the law and procedure. The law clearly states that all services performed by an attorney that involve legal advice or practice must be provided by an individual authorized to practice law in the given jurisdiction. Why is the law requiring a licensed attorney to discuss the case with a client, prepare a witness, or conduct a deposition? Because of the highly sophisticated concepts and terminology that will be used during the meeting. Only a certified court interpreter who knows and understands these topics can successfully and safely assist the attorney during these activities. Performing any of the above or similar acts by an individual not admitted to practice law in the jurisdiction is considered unauthorized practice of the law, and that is a crime. For the same reasons, a certified court interpreter should be used at all times. To the argument that certified court interpreters are not prepared to be cultural brokers or advisors to the attorney in these settings because their training has been too formal and strict, all I can say is that, without putting anybody down, it is very likely that the certified court interpreter will do a better job at bridging this gap between the attorney and his client (not the interpreter’s) because they are usually more experienced and better interpreters than most community interpreters. Moreover, they will also detect cultural hurdles in the legal context that a community interpreter will not be able to notice because of his or her lack of legal knowledge and experience. To affirm that certified court interpreters will not know how to act and assist the attorney they are working for is plain ignorance. Certified court interpreters know the difference between working as interpreters for the courts where they have to be impartial, and working for an attorney or law office where they are part of the defense, prosecutorial, or plaintiff’s team. Add to that the fact that they will know the reach and exceptions to the client-attorney privilege in these settings, and the community interpreter will not, or at least will not understand well enough, even if they were just enounced during his training.
There are other paralegal situations and scenarios where a community interpreter can be used without jeopardizing a legal case. Communications about logistics, social worker appointments, payment plans with the law office, and many others. The golden rule is that when the attorney’s professional service involves a court appearance (any court) an act with potential evidentiary effects (such as a police interview, a law office interview or preparation of a witness) or any occasion where the attorney will provide legal advice or practice law (such as a legal opinion in person or over the phone, or filling up a legal form) the attorney should always be assisted by a certified court interpreter (qualified or licensed depending on applicable legislation) The potential consequences and legal liability of ignoring this rule are enormous as they could impact the life, freedom, assets, or reputation of an individual or a company. When people retain an attorney they expect to see an attorney, they also expect to find a certified court interpreter by his or her side. When you are going to have an operation you want to see a surgeon, not a butcher.
Finally, the argument that the certification is only for “court” interpreting and not for “legal” interpreting, very popular among those who want to de-professionalize court interpreting, can easily be dealt with by remembering that our profession is a work in progress. There is much that we have accomplished in the legal interpreting arena, but there is more to be achieved, among other things, the expansion of certification programs to include testing of civil and administrative procedure. But even without these changes, certified court interpreters are constantly learning and training in all these fields through the continuing education requirements that are in place at the state level, and because of the professional market needs. Attorneys do not graduate from law school knowing all fields of practice, they graduate knowing where to find what they need so they can learn and understand it applying the legal thinking process they learned in school. It is the same thing with certified court interpreters. As far as the words “court” and “legal” it is probably a better choice to refer to these professionals as certified legal interpreters, but that is just semantics.
Dear friends and colleagues, there is a long way to go, but much has been accomplished in the legal interpreting field. Our efforts should focus on elevating the quality of the profession, not diminishing it. There will always be those who oppose our professionalization, but let them be from outside the profession, not from within. We have to work together to increase the number of interpreters with academic background until it becomes the rule and not the exception; we should continue to encourage other professionals like lawyers, physicians, scientists, and others to join our profession when apt and qualified; we need to strengthen the quality of the certification programs, ideally taking them away from the government just like the attorneys’ bars; and we must demand more and better continuing education programs.
This is the only way to professionalization, full recognition and respect that will ultimately translate into a higher quality service for those in the justice system, and will produce a better income for our colleagues. I ask you to oppose the lowering of the standards and the de-professionalization of court interpreting by sharing this information with your colleagues, attorneys, attorney bars, judges, community activists, and anyone else who may help us defend our profession. I also think that professional associations such as the National Association of Judiciary Interpreters and Translators (NAJIT) in the United States should prepare a position paper in this very important issue. Professional associations are there to protect their members and the profession. I now ask you to share your comments and opinions regarding this crucial issue that threatens our profession at this time.
Can the interpreter tone down, change or omit anything?
January 13, 2014 § 22 Comments
We know that there are different types of interpreting and they all have their own rules and protocol that must be met in order to achieve communication between parties that do not speak the same language. It is clear that court interpreting does not allow much flexibility. These interpreters must interpret everything that is uttered in the courtroom and this is understandable because an interpreter’s rendition in the courtroom has a different goal than any other kind of interpretation: It is for the judge or jury to evaluate the credibility of the individual being interpreted whether he is a witness, a victim, or a defendant. False starts, stutters, redundancies and statements full of hesitancy must be known by the trier of fact. There is also a second reason for this complete interpretation: The parties have the right to appeal an unfavorable decision, and they do so to a higher court where the original proceedings will be studied and analyzed for possible legal errors. The court of appeals scrutinizes these proceedings by reviewing the record. This record for the foreign-language speaker is the rendition of the interpreters who worked the original trial. We can see that the “simple” goal of achieving communication between the parties is not the only goal in court interpreting.
In conference interpreting the goals are different. For a conference to be successful there has to be communication between the parties. It would be worthless for a conference attendee to go to a presentation and not being able to understand what the presenter is saying. Knowledge could not be spread, policies could not be developed. A conference interpreter has to make sure that this communication happens. His voice and pace should be such that the foreign-language speaker can concentrate on the subject matter without having to spend his energy on trying to hear or understand the interpreter. The pace is not as fast as it is in court interpreting where everything must be interpreted. A conference interpreter can achieve his goal even if some redundant, obvious, or irrelevant things are left out of the rendition. A better paced and clear interpretation is preferable over a rendition where the interpreter has to rush in order to say “Welcome to the Twenty Fifth General Meeting in beautiful Las Vegas Nevada.” It would be perfectly fine to interpret “Welcome to the General Meeting.” People already know it is the twenty fifth general meeting. It is written all over the convention center. They already know they are in Las Vegas. They had to pay for a ticket to get there. The interpreter’s omissions did not have an effect on the communication; in fact, it helped because the interpreter was able to speak clearly and at a good pace.
In military interpreting it is necessary to omit certain statements. On one occasion a sergeant from an occupying military was training the newly-created armed forces of the occupied nation. The sergeant did not speak the local language and he had to scold some members of the other country’s military because they had not been performing as expected. The episode took place outdoors in the desert. The sergeant was surrounded by members of his military who worked under his command and understood everything as they spoke his language. There were about 30 or 40 members of the other country’s armed forces who were at attention and listening to the sergeant who was speaking through an interpreter. Because the interpreter was a local individual, and many local residents resented any type of cooperation with the occupying armed forces, he had to interpret while covered by a blanket and he had to disguise his voice for his own protection. The sergeant began his “normal” scolding, heard many times by the members of his own military. It was a crude speech where the sergeant called the foreign soldiers many ugly names, including remarks about their mothers. He referred to their sexual preferences and told them that they were acting like a bunch of sissys (although he used a more offensive word) The sergeant was not whispering these insults, he was yelling as loud as he could. This went on for about ten minutes. At the end of the speech, one of the members of the other country’s military stepped forward and replied. He apologized to the sergeant. Told him that they understood his message, and assured him that this would never happen again. The sergeant seemed pleased with this reaction.
This was a scolding that is customary in the sergeant’s armed forces. The name calling has a purpose and it usually works within that military culture. The members of the other nation’s military however, came from a very different cultural background. They came from a more religious society, and name calling that included remarks about family and homosexuality were considered an unforgivable insult. Keep in mind that the only reason for this meeting was to motivate the foreign army so they did a better job. Hardly the type of goal that you would achieve by insulting them. The military interpreter was facing a situation where his main role was to create communication between two groups of people who spoke a different language, lived on opposite sides of the world, and had a very different culture. On top of being worried for his personal safety, he knew that communication and understanding through the insults in the sergeant’s speech was not an option. He also knew that approaching the sergeant and asking him to tone-down his remarks would not be possible. The sergeant was speaking in front of his own soldiers. He had to be seen as fair, tough and impartial. Delivering a different speech to the foreign soldiers would have been perceived by his own troop as unfair, as preferential treatment. This left the interpreter with the important role of being the interpreter and cultural broker. What he did is that he communicated the message in its integrity, but instead of interpreting the offensive remarks of the sergeant, he substituted them with remarks about honor, justice, love of country, respect for the elders, and other similar cultural values that conveyed the same message and achieved the goal of communication and understanding without anybody feeling offended by the other party. This remarkable rendition by this military interpreter was recorded. I have seen the video just like many interpreters and linguists who are associated with the armed forces.
This is remarkable, but it is not new or different from what many of us do every day when we replace a local or regional sports remark with another similar one that the listener will understand. I have changed baseball expressions for soccer examples many times because I know that “three and two with two outs in the bottom of the nine” does not mean much to a listener from South America. On the other hand, “la última oportunidad para anotar ya sobre el minuto noventa del partido” conveys the same message. It is just a different sport; in this case soccer.
There are other situations where the interpreter selects certain words and terms depending on the target’s culture and values, and he does it without changing the message. There is a well-known episode of a sight translation of a diplomatic document involving two heads of state; one of them was a woman and the other was a man from a country where women were not considered suitable to govern. The negotiation at hand was crucial for both countries. When the interpreter received the document he immediately noticed that the document started with a paragraph that addressed the problem that it would create to negotiate with a woman because of her gender. On its next paragraph the document went on to spell in clear and certain terms the willingness to reach an agreement on the part of the man’s government. After reviewing the document, the interpreter decided to leave out all the sexist remarks and instead of them voiced some formal greeting. Then he went on to interpret the essential points of the document. At the end of the day there was an agreement to the satisfaction of both parties. This may have never happened had the interpreter decided to do a full and complete sight translation of the document.
It all comes to the role of the interpreter and his function as a cultural broker. Many colleagues, particularly those who come from the court interpreting field, sustain that the interpreter’s job, regardless of the type of interpretation, is to render a full and complete interpretation no matter what. They base this position in legal and ethical considerations that regulate their field. Canon 1 of the United States National Association of Judiciary Interpreters and Translators (NAJIT) states: “…Canon 1. Accuracy. Source-language speech should be faithfully rendered into the target language by conserving all the elements of the original message…and there should be no distortion of the original message through addition or omission, explanation or paraphrasing. All hedges, false starts and repetitions should be conveyed…”
The New Jersey Code of Professional Conduct reads: “…CANON 2: FAITHFUL AND ACCURATE CONVEYANCE OF MESSAGES. Interpreters… should faithfully and accurately reproduce in the target language the closest natural equivalent of the source-language message without embellishment, omission, or explanation.”
Others, mainly those colleagues working in the conference, diplomatic, and military fields, acknowledge that the main goal is to achieve communication and understanding between the parties by conveying the message in a way that is properly received by the target as if heard in his own language. The only way to reach this objective is by factoring in all cultural values of the individual: Adapting the words to transmit the same message with accuracy.
Hatim and Mason define the role of the translator along these lines by saying that: “…The translator has not only a bilingual ability but also a bi-cultural vision. Translators mediate between cultures (including ideologies, moral systems and socio-political structures), seeking to overcome those incompatibilities which stand in the way of transfer of meaning. What has value as a sign in one cultural community may be devoid of significance in another and it is the translator who is uniquely placed to identify the disparity and seek to resolve it…” (Hatim & Mason 1990: 223-224)
Pöchhacker applies it to the specific job of the interpreter when he states: “…Since an interpreter’s actions have a much more immediate effect on the progress and outcome of the interaction, it has become increasingly common to construe the interpreter’s mediation activity as one of ‘moderating’ or ‘managing’ the interaction to guide it toward a felicitous outcome…But mediating interactive discourse would of course go further than that [resolving overlapping talk, asking for repetition, or choosing which utterance to interpret, and how] and include actions designed to overcome obstacles to communication such as ‘cultural differences’. Examples include explanatory additions, selective omissions, persuasive elaboration or the mitigation of face-threatening acts…” (Pöchhacker 2008: 13)
Moreover, some would argue that even in the most-strict court interpreting environment language has to pass through the mind of the interpreter. The interpreter then selects from his repertoire the best terms and expressions that will produce a full and complete rendition, but in doing so, he will put forward those words and expressions that his own ideology, background, and culture will provide.
Hermans puts it this way: “… (The translator and interpreter’s) textual presence cannot be neutral, located nowhere in particular. The way a translation overwrites its original may be deliberate and calculated on the translator’s part but as often as not it is unconscious, or barely conscious, dictated by values, preferences, pre-suppositions and perceptions built into the individual and social beings that we are. (Hermans, quoted in Pöchhacker 2008: 15)
Dear colleagues, we see that there is not a clear universal answer to this dilemma that interpreters face every day all over the world. Some of you may think that the interpreter should just interpret everything as said. That it is not his job to explain or to create a cultural outreach. Others may agree with those who believe that interpreters and translators are language facilitators and cultural mediators whose mission is to transmit the message from the source to the target in a way that accurately conveys the message even if this means that there has to be some cultural adaptation. A third group may conclude that it depends on the type of work that the interpreter is asked to perform because his rendition is dictated by the type of interpretation. Please tell us what you think about this fascinating and complex issue.
Are court interpreters at risk of committing a crime?
March 5, 2013 § 12 Comments
Some of you may have noticed that for about a couple of years there has been a tendency to redefine the court interpreter profession. Some are now saying that we should not even call ourselves court interpreters; that we should instead refer to those who interpret in court as “cultural brokers,” “language specialists,” “language facilitators,” and many other similar titles. The basic idea behind this new movement is that many times court interpreters interpret correctly and accurately what has being said in court, but the person they are interpreting for, usually a defendant, victim, or witness, does not understand what happened during the court proceeding. Some claim that because of cultural differences, lack of formal education, economic factors, and others, these people who do not speak English need more than just interpretation. They need explanations, descriptions, maybe even a lower registry in order to understand what is happening in court.
It has been suggested that court interpretation rules and practices are outdated and therefore ineffective; it has been said that these ethical and professional considerations and expectations cripple the process as they contribute to increase the barrier of misunderstanding instead of eliminating it. The proposal is to approach judges and attorneys and inform them that court interpreters need to change their ethical and professional rules, and that as language professionals, they need to be the ones amending them, not other professionals who are not entirely familiar with the interpreter profession.
It has been suggested that nothing changes in a case when the interpreter tells the defendant that his charges have been “dropped” even though the judge said that they had been “dismissed.” That this allows the defendant to understand better.
I agree that our job is to make sure that two people who do not speak the same language can communicate. I agree that the law is technical, complicated, and full of big words and obscure terms. I am aware of the speed at which hearings are conducted in most courthouses, and I do not dispute that it is very difficult to follow a proceeding that took 90 seconds. The problem is that I am also aware of a crime named: “Unauthorized Practice of the Law.”
Black’s Law Dictionary defines it as “The practice of law by a person, typically a non-lawyer, who has not been licensed or admitted to practice law in a given jurisdiction.” (Black’s Law Dictionary. 7th. Ed. St. Paul, MN: West. Pp 1191-1192) Even licensed attorneys are barred from practicing in jurisdictions (states) where they have not passed the bar exam and being sworn in as attorneys according to Rule 5.5 of the Multijurisdictional Practice of Law Rules of the American Bar Association (ABA) Moreover, unlawful practice of the law is illegal in the federal and state judicial systems, and it constitutes a crime. Some states treat it as a misdemeanor like Arizona and New Mexico, and in some states a behavior of falsely claiming to be a lawyer is a felony (TX Penal Code Ch. 38 Section 38.122 & 38.123) Misdemeanors can carry up to one year in jail, and felonies can land a person in prison for even longer.
Asking an interpreter to interpret accurately and completely is appropriate and expected. Asking an interpreter to “edit” and decide what to say and how to say it, even with an amended set of rules of ethics and professionalism, creates a situation where that interpreter has to navigate the very treacherous waters of the law, and act as a cultural and linguistic broker without breaking the law, and with the constant possibility of being deprived of his or her freedom. In my opinion the risk is too high and many interpreters are not prepared or willing to make a distinction between those illegal activities that constitute unlawful practice of law, and those others that would help the defendant, victim, or witness understand what just happed in a court hearing.
The solution has to be somewhere in the middle: A good and honest interpreter must be aware of the cultural differences between client and attorney, parties and judge. If the interpreter determines that there is a problem in the communication, he or she must tell the English speaker attorney that his client may be having difficulties understanding some of the concepts that were debated, the interpreter must help the attorney by explaining the possibility of a cultural, economic, emotional wall between her and her client. That ends the interpreter’s obligation. Now it is up to the attorney (or judge) who needs to explain and maybe rephrase some of what has been mentioned to her client: the defendant. It is the attorney who should be giving legal advice, not the interpreter. The attorney needs to determine what is said and explained to the client. The interpreter must interpret all explanations the attorney gives to her client. In other words, there is nothing wrong in telling the attorney that his client is not understanding what is being said in court. This way the interpreter stays within his field, and the attorney practices law. Please share with us your thoughts on this new trend, and tell us your opinion on what needs to be done.