Lack of understanding, common sense = constitutional conflict in court?
November 12, 2018 § 1 Comment
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.
What is the appropriate consecutive rendition from the witness stand?
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.
Can the interpreter’s simultaneous rendition be distracting?
April 11, 2014 § 11 Comments
I have been very fortunate in my career. I have worked with some of the very best in the profession, and yes, sometimes I have worked with some colleagues, thankfully very few, who would fall short from that rating. As many of you know, I have worked all over the world and I have worked conference, diplomatic, court, and escort interpreting for many years. During those years I have observed and learned many things from this spectacular interpreters and I have also seen so many different styles.
One of the things that many colleagues do when simultaneously interpreting is that they close their eyes and gesticulate a lot. They use their hands to express what they are saying and to understand the concepts they are absorbing from the speaker. This works fine for them. Their renditions are impeccable. After years of working in a booth next to some of them I have become used to their style. I interpret differently. I do not use my hands or head to express what I am saying. I just sit there without any gesticulation. This works for me just as well as the opposite works for many great colleagues. I have no problem with either style when you are working in the booth and you are out of sight; in fact, I applaud those who have found this to be a tool to improve their interpreting skills. The important thing is to provide a good service and bridge the communication gap between the speaker and his audience.
Unfortunately, I am not so convinced that this effusive style is as effective in court as it is in the booth. Interpreters who work in the courtroom are not shield by the booth. Even if they work with equipment they are not out of sight. The equipment is usually of the portable kind, and even though many courts use wireless transmitters and receivers, the interpreter sits at the table next to the defendant or somewhere else in the courtroom in plain view of all participants: judge, jury, attorneys, witnesses, and defendant.
As part of their work, court interpreters can interpret difficult complex concepts and very detailed information. One of the reasons to have a court hearing is to assess the credibility of witnesses and litigants. The jury’s attention has to be focused on those testifying or arguing the law. The non-English speaker needs to understand what is going on in the courtroom and for that he often has to concentrate. Because of some of my professional interests, I often attend court hearings in different parts of the world and as an observer who is not involved in the process, I have noticed that gesticulating interpreters can be distracting. I have noticed how members of the jury are sometimes more interested and amused by the interpreters hand movements than by the witness’ testimony. I have seen how defendants pay more attention to what the interpreter does than to what the interpreter says. I do not think this is appropriate. I believe that the interpreter who is working in the courtroom has to be aware of the fact that he cannot be the center of attention; that unlike conference interpreters, court interpreters are visible to all. I understand that this may be their natural way to communicate, that they may need to do this to understand the message they are about to interpret. Unfortunately, I do not think that most jurors, attorneys, and litigants can just ignore their gesticulation and focus on the testimony. I think court interpreters should learn to control these movements and concentrate on accurate interpreting while being inconspicuous.
I find this to be a fascinating, delicate, and frankly touchy subject that is not easy to discuss with our colleagues. For a long time I hesitated to write this blog, but I finally did it because I want to hear what you all have to say about it. I ask you to please avoid personal attacks and comments about how gesticulating helps the interpreter. Instead, I invite you to share with the rest of us your thoughts on this issue: Is this interpreting style distracting to those participating in a court procedure?
Your Honor, the interpreter cannot hear.
October 14, 2013 § 18 Comments
Court interpreting can be exciting, interesting, and well remunerated, at times it can be challenging and even frustrating. It is all part of the job and I accept it as it comes; however, the thing I cannot accept is the noise, poor sound system, bad manners of many attorneys who just won’t stop talking, and the lack of understanding, by many officers of the court, of our need to hear what is being said.
There is a very simple rule: you cannot interpret what you don’t understand and what you can’t hear. It is that simple. Yet, many courthouses have turned into some of the worst possible environments to work. Many times this happens because of ignorance and lack of will to help improve the court services (which include interpretation for those who do not speak the language used in the courtroom) and on other occasions the courts just turn a blind eye to the problem even though they perfectly know that it is essential for the interpreter to hear what the parties are saying during the hearing.
Among these nightmarish environments to work as an interpreter, we have the attorneys who never stop talking in the courtroom; it seems that they have never thought of taking their conversations to the hallway. I couldn’t tell you how many times I have overheard conversations about dates from hell, complaints about bosses, stories about spoiled children, and opinions about judges, all while I sat in a courtroom waiting for my case to be called.
Of course I couldn’t leave out of this piece the cheap, old, poorly-kept, and obsolete sound systems that are waiting for all of us at many courthouses. These artifacts have outlived their useful life and instead of an asset, they constitute an obstacle to our work. It is very frustrating to try to do your job while the receiver keeps skipping forty percent of your rendition, or when the batteries are so low that you are not sure they will last the entire hearing. I would like to meet the person who thought that changing batteries, plugging and unplugging equipment, and running around looking for a better transmitter was part of interpreting; and if we are on the “mood” for meeting some of these “pillars of the court interpreting profession,” I would love to meet those who first dared to ask the interpreter to CLEAN THE EQUIPMENT after using it! I have never done it and I sure hope you haven’t either.
We must include all those attorneys who move away from the microphones as they speak, and we couldn’t forget the lawyers who talk so low that nobody can hear them. Somehow they don’t understand that the interpreter sits behind them (or to the side) and this makes it very difficult to hear them because their voice is projecting the opposite way: towards the judge, witness or jury. This group’s main characteristic is that after being reminded to speak into the microphone or to speak louder, they do it for about two minutes and then they go back to the old ways. I guess some of them are just following the lead of that judge who turns away from the microphone when she speaks, or the one who talks so softly that it’s easier to hear when a pin drops in the courtroom even though she is speaking.
Finally, my “favorite”: In some lower courts there is no place for the interpreter to sit in the courtroom. Interpreters are supposed to sit “wherever” as long as they are not “bothering” anybody else with their work. Often times, the interpreter ends up in the back of a courtroom, behind an easel or a screen, or sitting among the audience. How can anybody expect you to hear anything under these circumstances?
Of course, it is important to educate the courts. It is necessary to explain that we have to be able to hear what is being said by the judge and the parties over our own voice. All of this is crucial. We have been “educating” the bench and bar for many years.
Unfortunately, after years of “educating” judges and lawyers, many colleagues and administrators still believe that the solution is to continue. To do the same over and over again until they all finally get it. I disagree.
I think somebody has to say out loud that we have been “educating” them for a long time and it is time for the courts to set the appropriate conditions for us to do our work. It is time to stop solely “educating” and to start demanding that court administrators and chief judges do their job. We are officers of the court and an essential part to the system. We are not an inconvenience; we are an important step in the administration of justice.
It is true that most federal courthouses now have appropriate equipment, a place for the interpreter, and a noise level adequate for us to do our job, but there is much to be done at the state and lower levels. It is time for the state judges to start controlling their courtrooms so that people who “need” to talk exit the courtroom, those who need to be heard use the microphones, and those who are in the courtroom to interpret have a place where they can sit, use their computers or tablets, and more importantly, listen to what is being said during a hearing. We are not mind-readers. We are court interpreters. Always remember: you can’t interpret what you can’t hear.
I would love to hear your thoughts and experiences with this essential issue turned into a nightmare by many courts.
Interpreting for the attorney from hell.
September 16, 2013 § 11 Comments
During my years as an interpreter I have done a lot of court interpreting. I have worked interesting cases, boring proceedings, and nasty trials. While doing it I have had the opportunity to meet and interpret for great people and I have had the misfortune of interpreting, or better said: attempted to interpret, for horrible speakers. No doubt you all have had your share of difficult people regardless of the type of interpreting work you do; but court interpreting makes it particularly difficult when you are faced with the consecutive interpretation of the cross-examination of a witness.
For those of you who do not practice in the courts, cross-examination is a phase of a trial when the attorney for the counterpart interrogates a witness offered by their opponent. Because the witness has already testified for the side that originally offered him, the attorney for the other party in the controversy has the right to ask him questions about the contents of the statement provided during the interrogation by the party that presented him as a witness, to test inconsistencies in the testimony; in other words: to impeach the witness. To do it, attorneys are limited as to the questions they get to ask during this cross-examination. They cannot ask anything that goes beyond the scope of the original questions and testimony (called direct examination)
To be able to successfully uncover discrepancies and falsehoods, during cross-examination attorneys ask questions that suggest the answer to the witness and leave no room for long explanations or excuses. They do this by starting or ending all questions with phrases such as: “Isn’t it true that you saw him steal the money?” or “You knew all along where she was hiding, didn’t you?” This way the witness can only answer with a “yes” or “no.”
As you can imagine, this type of questioning is very difficult to interpret, not only because it is done consecutively, but because of the importance of the phrasing. The interpreter must interpret the question into the target language in a way that the answer has to be a “yes” or “no.” It is also important for the attorney asking the questions, and for the judge and jury, to see the immediate reaction of the witness after he listens to the question as the judge is developing a line of questioning that leads to impeachment, and the jury members are assessing the credibility of this witness. There are many attorneys that are very good at cross-examining through an interpreter. They know that they need to pause for the question to be interpreted before doing a follow-up question; they know that they must ask questions that are easily interpreted into the target language within the format explained above. Unfortunately, there are also many lawyers who do not know how to work with an interpreter in a trial, even if they have been practicing for a long time. You probably met these attorneys during your career. So did I.
However, among all those difficult to interpret lawyers I have worked with, there is one that is by far at the top of the list. I call him the attorney from hell.
Sometime ago I was retained to interpret for a very long trial with multiple defendants and many attorneys. My job was to exclusively interpret the testimony of the witnesses that took the stand. I knew several of the attorneys but not all. The trial started and we got to the witness testimony. Everything went fine for several days, until it was time for the attorney of one of the defendants to cross-examine a Spanish speaker witness from the prosecution. The attorney made this experience one of the most frustrating ones in my long career. In fact, he became a walking-manual of how not to cross-examine when working through an interpreter. First, he would repeatedly ask questions with double negatives, making these questions very difficult to understand, and portraying the witness as a liar when in fact he was trying to understand the attorney’s question. Next, when the witness would say that he had not understood the question (because it was a double negative) the lawyer would make fun of him and repeat the very same question very slowly and loudly. Obviously, he was trying to show the jury that this witness was reluctant to tell the truth, but in reality he was “talking to the wall” since his disrespectful questioning had to go through the interpreter before the witness knew what was asked. Obviously my interpreter colleague and I did not need him to repeat the question slowly; we needed him to get rid of the double negatives. By the way, we are not deaf either. I know many people speak very loud when talking to a foreigner who doesn’t know the language as if a loud voice could magically be understood in any language. This attorney never waited for the interpretation to be rendered. He would start making fun of the witness even before the witness had heard the full question; there were many occasions when the judge on his own; or at the request of the interpreter had to ask this attorney to wait for the question to be interpreted before asking something else again.
Imagine this problem, and combine it with countless false stops during the question where the lawyer stops talking, the interpreter starts the rendition, and half way through it the attorney continues with a second part of the question (which by the way is not allowed according to the rules of evidence). The result is a big mess. If this wasn’t enough, the attorney would constantly pull out pages from the witness’ prior statements to the Grand Jury (during the indictment phase of the case) and read for many minutes non-stop, then he would put the document down and ask the witness: “So is it or is it not?” Obviously it is very difficult to interpret this way as the interpretation of the written statement goes on for a long time, and then the interpreter ends with the question above. Needless to say, the witness gets confused, the attorney loses the jury as they have to sit there for a long time without understanding a word of what is being said, and the attorney gets impatient and interrupts the interpreter telling me or my colleague to stop right there, even though he doesn’t even know how far into the interpretation of the prior statements we got. Add to all of these atrocities that the attorney was sarcastic and used big words during the entire cross-examination (which many lawyers do and is justified as part of the impeachment process, given the fact that the witness will have a chance to rehabilitation during the re-direct examination by the attorney who originally offered his testimony) and the fact that the lawyer had a paralegal sitting at the defense table next to their client, and this person was acting as a sidekick to the attorney as he was constantly laughing at all the sarcasm during this dog and pony show. We did our job, interpreted everything as we should, asked for repetitions and clarifications every time it was necessary, and kept our composure and professionalism throughout the trial. Many people probably didn’t even notice the difficulties attorneys like this one create for themselves by not knowing how to work with the court interpreter, and this lawyer will probably work with interpreters many more times before his career is over. Now I invite you to enter your suggestions when this situation arises in court, and please share your stories about working with difficult attorneys during direct or cross-examination of a defendant or a witness.
When being politically correct hurts your rendition.
August 5, 2013 § 17 Comments
A few weeks ago I was on a plane from Atlanta to Chicago. We were ready to take off and I planned to prepare during the flight for an assignment I had that very same evening at my destination. Then, as we were turning our telephones off to pull back from the gate, the voice of the pilot came over the speakers. He informed us that there would be a delay because we had to wait for a last-minute passenger who had just booked a seat on our flight. At that point I thought that we would probably be there for another ten or fifteen minutes so I turned on my phone and began to answer emails. About thirty minutes later the pilot informed us that it would take a little longer. By now some passengers started to question the rationale behind the delay; after all there were at least another ten flights from Atlanta to Chicago later that same day. About fifteen minutes later the pilot announced that they were asking for volunteers to move from the front to the back of the plane because the last-minute passenger was in a wheelchair. Some passengers volunteered and moved to the back, a couple of the airline’s ground crew members helped the passenger, who turned out to be an elderly woman, onto the aircraft and into her seat. We assumed we were ready to go. Unfortunately, at this time the pilot announced that there was some bad weather over Indiana and our flight plan had been altered. The problem: because we had been sitting at the gate for more than an hour, we now did not have enough fuel to go through the new route we had been assigned, so the plane had to refill before take-off. Re-fueling was going to take about thirty minutes so we deplaned. As I was exiting the plane, I overheard a couple of guys saying that although there were plenty of flights to Chicago, the delay was due to the fact that this elderly woman was covered under the Americans with Disabilities Act (ADA) and therefore, the airline had decided not to offend her by asking her to wait until the next plane where she would board before the rest of the passengers. The second person remarked: “it’s just that nowadays everything is decided based on its political correctness.” I don’t know if these passengers were right or not, but that made me think of what we, as interpreters, face sometimes when somebody wants us to say, do, or omit something that should be said, omitted or done as part of the interpretation, just because it is not politically correct.
Some years ago, but already within this era of political correctness, I was working as a court interpreter in a criminal trial where a person was accused of murder. It involved Hispanic gang members and that meant that it involved plenty of nicknames. As the trial progressed, and many witnesses testified before the jury, it became clear that a key player in this murder was a gang member known as “el negro” (the black one) who apparently had witnessed the killing. All witnesses, one after another, kept referring, in Spanish, to “el negro” as a key witness for the prosecution.
Eventually, there was a recess for I don’t remember what reason, and during the break, one of the prosecuting attorneys, an Anglo woman who was not the lead prosecutor and did not speak Spanish, approached me and told me: “You know, I’d much appreciate it if you stopped referring to Mr. Sánchez (I made up the name for this posting) as <el negro> It would be better if you refer to him as the <African-American> so please do it. I don’t want to offend anybody” I looked at her in amazement. In all my years as an interpreter nobody had asked me to do such a bizarre thing before. I explained to her that nicknames, just like proper names stay in their original language. I even explained that it is common for Hispanics to give a nickname to an individual as an expression of sarcasm, thus, the tallest guy could be nicknamed “chiquilín” the fattest man could be called “el flaco” and so on. I even told her that as a prosecutor she should be concerned about the identity issue, and that the correct nickname could be the difference between acquittal and conviction. She understood that I was not to honor her request, but did not like my answer, and so we continued with the trial after the break.
After other two or three witnesses, the bailiff called the name of another witness who entered the courtroom. This was a tall young white man. He was ushered to the witness stand, placed under oath, and asked to have a seat. Next, the prosecutor asked the first question: “Can you please tell us your name and spell your last name for the record.” The witness complied and I interpreted for the jury. Second, the attorney asked: “Sir, do you go by any other name?” The white young man answered in Spanish: “Si, me dicen el negro” (Yes, they call me “el negro”) I interpreted for the jury as I looked at the prosecutor who had requested I be politically correct and refer to the witness nicknamed “el negro” as the “African-American” and with an inner sense of satisfaction I looked at him and then back at her as if telling her: “you see, I did the right thing. Referring to this man as the “African-American” would have been ridiculous and odd.” From that day I always question political correctness in those situations. My belief is that when someone wants to have a politically correct event, they should talk to the speaker, not to the interpreter; after all, we interpret what others say. We are not the ones who are speaking. I would like to hear your comments regarding this issue. Please feel free to share any stories you may have that are similar to the one I just told you about.
Big change to the way the federal court interpreter exam is rated in the U.S.
July 22, 2013 § 10 Comments
As I write this posting many of my friends, colleagues, and students are taking the toughest court interpreter exam in the United States: The federal court interpreter certification test. There are other court or legal exams given by government agencies at the federal and state level, and even the private sector has designed some interpreter exams, but no test is as demanding as the federal certification exam. This week, just like one summer week every two years since the test has been in place, hundreds of Spanish-English interpreters: veterans, newly graduated, newcomers to the United States, and many others who previously passed the written test (at least one year earlier) are culminating months on study, practice and psychological preparation as they leave their hometown and travel to some of the largest cities in the country to have their skills tested for some forty five minutes. During that period of time they will attempt to demonstrate that they are ready to interpret simultaneously, consecutively, and to sight-translate in the United States federal courts.
Within the profession it is very well known that this is not an easy exam; in fact, the passing rate of the attorney bar exam is substantially higher than the federal court interpreter certification test. As someone who has gone through both exams I can even say that it is harder to get certified as an interpreter. Traditionally there have been two systems to rate the examinee’s rendition: For many years the test was administered orally before a live jury of three certified interpreters who would rate the applicant’s performance. Years later the system changed to a recorded test where the examinee would sit in a room with a proctor and record the rendition. Afterwards, the recording was reviewed by a team of three certified interpreters that would rate the performance based on the recorded material. This year, for the first time ever, the renditions will be rated not by a jury of three certified interpreters, but by teams of two.
This change is as radical as the switch from a live oral test to a recorded one. Generally in life we encounter all kinds of panels, juries, and other deliberation groups that consist of an odd number of members, and there is a reason for that configuration: You eliminate the possibility of a tie, you discard the scenarios where an even number of people can agree to one thing and at the same time another even number of people agree to another making a majority decision very difficult. The odd number gives you unanimity or a tie breaker. In other words, it assures you that there will be a final decision. In the case of the federal court examination a final vote of 3-0 or 2-1.
The new system will no doubt result in many unanimous decisions of pass or fail, but there will be ties, and when the two raters cannot reach a consensus the exam will be sent to another panel who will rate it and decide. The system seems fair, I am not so sure that it will be as quick and efficient as the 3-rater panel, but it seems like a reasonable solution to a tie. I know many of the raters and as far as I can tell, an overwhelming majority have rated exams in the past; many of these interpreter-raters have scored tests under the two previous systems and most of them have demonstrated to be fair and capable. I do not believe that this will make the exam easier or more difficult, I don’t know if this will make it more efficient, and I don’t know yet if this will make it as fair as it has always been in the past. Everything indicates that it will be fine, but to know for sure we have to wait and see. I will be carefully watching the outcome as I am interested to see not only if more people fail under this new system, but also if more people pass. Big changes one way or the other could be a symptom that something is not as it was before. I give them the benefit of the doubt and today I assume that everything will be fine; it is just that a jury of two looks a bit strange. Please share your thoughts on the test and this new rating system.
Is interpreting a lesser profession?
February 25, 2013 § 9 Comments
I recently posted a story about a judge near the border who questions the interpreter’s ability to do his or her job. I described how this judge asks Spanish-speaking jurors to correct the interpreter’s rendition during the trial, and tells them that in cases when none of the Spanish-speaking members of the jury are sure about a certain word or term, she would ask for an expert to render an opinion. As expected, many of you were outraged, some of you offered solutions to this problem, and others shared similar stories showing that this practice of not recognizing the interpreter as a professional expert, and putting him or her down, happens all over the world.
All these reactions were natural and expected; however, there were quite a few participants, many of them identifying themselves as court interpreters, who made statements that seemed to accept this practice and even endorse the system. Comments such as: “…Interpreters should be more professional and less sensitive…(they) should just interpret and get used to it…” “…It happens all the time…(and) we need to act more like interpreters and do the job they are paying us to do…” and even: “…I think (Asking the jurors) is a good idea. They may know how to say something we don’t…”
Dear friends; those of you who know me personally, and all regular blog readers, know that I have always fought to get our profession acknowledged as a real profession. We are professionals! The work we do requires of knowledge, skill, preparation, formal education, cultural awareness, social skills, and many more… Our function is essential for the communication of people who don’t speak the same language. As long as there are two languages in the universe there will be interpreters. I understand that many colleagues, and with reason, argue that we are not a regular traditional “profession,” that we are stuck in between being a profession and being an art.
It is essential that all interpreters, regardless of their area of expertise and place of services, present themselves as professionals. My colleagues, in order to do this we need to believe it first, we need to feel it. My court interpreter colleagues must enter a courthouse feeling, believing, knowing, and projecting that they are part of the professional service providers who work in the justice system. They need to group themselves in the same category with the judges, expert witnesses and attorneys; that is where they belong. Sadly, many court interpreters see themselves more like a clerk, and identify themselves with support staff such as clerks, bailiffs and deputies; In fact, some of them act as if they can relate more to the parties: victims, witnesses, and even defendants.
What do you think an attorney would say if the judge were to ask those jurors who may be attorneys or paralegals to please correct the litigants during the trial if they are quoting the wrong case law? We cannot even imagine that scenario. It is exactly the same with our profession.
Court interpreters in this case, and all interpreters in general, need to act as professionals and educate everybody they interact with about their profession. Go out there and explain judges, attorneys, agencies, hospital administrators, and clients who we really are. If you do, you will soon notice that they treat you differently, that you feel better about yourself, and you will notice that your income will increase because once you feel like a professional, you will act as one, and professionals charge accordingly for their professional services. I would like to hear from you. Please share with all of us your thoughts and ideas about who we are as interpreters, and how we should act when providing our services.