State court interpreter certifications could turn meaningless.
October 16, 2014 § 17 Comments
A couple of weeks ago I received an email that concerns me enormously. I am sure that many of you who are based in the United States have received similar emails from state-level judicial agencies. In my case, I got an electronic communication from the Administrative Office of the Courts of one of the fifty states in the U.S. (not the federal government) this was one of those global emails that are sent out to everybody on a master list. Basically, the message was that the National Center for State Courts in the United States (NCSC), apparently in coordination with (at least) some states, is planning to offer remote telephonic interpreting across state lines, and for that purpose, the states (and I assume the NCSC as well) are compiling lists of state-level certified court interpreters who may want to be part of the interpreter pool that will be used to interpret court hearings from a different state. Although I hope the message’s meaning was different, this is what I understood. The email is written in such a way that, to the reader, this idea looks good and beneficial for everyone: the interpreters, because they will have more work (although I would guess that the fees offered by the state governments will not be anything to brag about) the states with underserved populations due to the lack of interpreters, because they will get somebody who has been certified somewhere by a state-level judiciary, and the foreign language speaker, as they will have the services of a professional interpreter instead of a family member or a paraprofessional.
Does it sound good to you? Well, if I understood the email as a communication asking permission to include interpreters’ names on a master list to indiscriminately interpret by phone, regardless of the state, it did not sound even half decent to me. Let me explain:
It is true that state-level certified interpreters are better equipped than paraprofessionals, and therefore the service provided should be of better quality. It is true that all state-level certified interpreters have attended a basic orientation and they have passed a court certification test (now administered by the NCSC or CLAC) and in many cases they have also taken an ethics and professional responsibility test. This obviously puts them ahead of those unscrupulous people that are roaming through the hallways of many courthouses in the United States. Unfortunately, and this is the real and very big problem: these interpreters, who have been certified by one of the fifty states, would now interpret cases from other states where both substantive and adjective law are different. That is the problem. The interpreter will interpret legal proceedings based on legislation that he does not know. Unlike U.S. federally certified court interpreters who work nationwide because they interpret the same federal legislation all across the country, these state-level individuals will have to deal with fifty, sometimes very different, legal systems.
Just like the age to get married and gun control laws vary from state to state, the catalog of crimes and civil law contracts are different. Think of one single situation: battery and assault; or is it assault and menacing? Well, the answer is: it depends on the state, and the differences are radical. Penalties and procedures also change depending on the state. This is why attorneys can only practice in those jurisdictions where they have passed the Bar Exam. It is a very delicate matter.
If this is indeed what the NCSC and the states want to do (and I hope I am wrong) then I am extremely concerned as an interpreter, because this will be another attempt to de-professionalize our jobs and make them look more like the legal secretary who can work anywhere, and less like the attorneys who can only practice in the state (or states) where they are members of the state bar. Sure, I understand that state-level agencies will praise the “benefits” of this solution, which in reality will solve their own problem (not the interpreters’ or the foreign language speakers’): Compliance with Title VI of the Civil Rights Act. This is a state-level priority because states that do not comply will lose federal money.
I am also worried as an attorney for several reasons: First, states will allow interpreting services across state lines using telecommunications. This could be an interstate commerce issue where the federal government has to participate (at least); but the second reason is the one that motivated me to write this post: interpreters who do not know the legal system of a particular state will practice in that jurisdiction. They may physically be in the state where they are certified, but their services will affect a court system, and litigants in another state where they have never demonstrated their capacity to practice. I believe attorneys who represent foreign speakers need to be aware of this potential “solution” so that from the beginning they know that perhaps the case could later be appealed for ineffective assistance of the interpreter. Attorneys need to know that when they are advising their client on an assault charge in their home state, they may be using the services of an interpreter from a state where assault really means battery. Lawyers will need to assess the potential procedural complications in case they sue the interpreter. Jurisdiction will have to be determined, and these lawsuits could end up in federal court.
If this “program” has also been planned for civil cases, then the problem is worse. Remember, there are at least three different civil legal systems in the United States, the one followed by those states who have a system based on the Anglo-Saxon tradition, those whose system comes in part from the days where these territories were part of the Spanish Crown (just think divorce and community property division) and then Louisiana and the Napoleonic written system. As an attorney, or a foreign language speaker, I would not want to have an interpreter from another state, much less one from a state where the system is different.
I sure hope that this “solution” (if conceived as I understood it) is discarded and the states look for better options such as a higher fee for those interpreting in state courts. There are very good and capable interpreters everywhere in the United States, it is just that they will not work for the fees currently offered. A more attractive fee would also encourage others who would like to join the profession but are reluctant because of the lack of money to even make a decent living.
By the way, these problems apply to those languages where there is no certification and the interpreters are registered or qualified to work in court by a particular state.
I really wish I am mistaken and this is not happening in the United States, but if it is, I will continue to watch the developments of this program, and if needed, I will speak up in legal forums to bring awareness of the potential risks generated by using state-level certified interpreters in places where they have never been certified. I now ask you to share your thoughts, and concerns, about this potential change that would end up rendering a state-level court interpreter certification useless.
Questions of a court interpreting student. Part 2.
June 3, 2014 § 4 Comments
I received a message from one of my students of court interpreting in Mexico City. With the new oral trial system that is now being implemented in Mexico there will be many opportunities for interpreters to find assignments in court settings, so she is considering becoming a court interpreter when she graduates from college. She researched the matter, and as she was getting deeper into the world of court interpreting she decided to contact me with some of her doubts. Her questions were very good, so I thought about responding through the blog so that others, in Mexico and elsewhere, with the same or similar concerns could learn a little more about this area of the profession. I asked her if this was an acceptable way to answer her questions, she said yes, so I wrote down my answers. As I was responding to the questions I realized that this would be a lengthy post so I decided to divide it in two parts. Part 1 was posted two weeks ago. I now invite you to read the rest of my answers to her questions.
- What do you do as a court interpreter when a legal concept in the target language is similar, but not equivalent, to a legal concept in the source language or vice versa? Do you explain it? How do you get the knowledge to identify equivalences or similarities if you studied law?
There are many times when the interpreter faces a situation where there are similar legal concepts but the exact legal term or figure does not exist in the other language. This happens more often between languages from countries that have different legal systems: written Roman Law versus oral Common Law. The general rule for the interpreter is that she does not have to explain or define anything. It is the attorneys’ job and duty to explain the law not only to their client, but if needed, to the court interpreter so she can do her job. In a situation where a competent interpreter who has done her homework runs into a legal concept that she does not understand, she must research it and study it as part of her preparation for the case, and if there is no time for that, she has to inform it to the judge or attorney, depending on the interpreters function in the particular proceeding, so the legal term can be explained to her. Many times the explanation will allow the interpreter to find the correct term in the target language. Interpreters, who have studied Law as your question says, have the advantage of knowing and understanding legal figures and terms without any explanation. If this is the case, and the interpreter is ambitious, she can study the legal figure from the country where she did not study law and this way find a better solution to her problem. This is one of the reasons why most legal systems require interpreters to comply with continuing education requirements. Fortunately for you, with the new legal system being implemented nationwide, Mexican court interpreters will not find this situation very often anymore.
- What happens when someone, the judge, prosecutor, or defense, realize that the interpretation is wrong or misleading? Is the interpreter penalized, and if so, what sanctions does he face?
Interpreters are human and they perform one of the most difficult tasks in the world. Court interpreting is so complex, that most court systems in the world are now requiring team interpreting for all hearings lasting over an hour. Any interpreter can unintentionally make a mistake and we all do at some point. It is what the interpreter does after the mistake that makes the situation irrelevant or serious. In most countries, mistakes due to bad acoustics, poor delivery by the speaker, interpreter fatigue, etc., can be easily corrected by an observation on the record amending the mistake. Other more serious mistakes due to a complex legal concept or a lack of context may be more relevant but they can also be cured by a correction as previously stated or by an admonition by the judge. Mistakes due to the interpreter’s ignorance can be corrected by the other member of the team who will discuss the discrepancy with the interpreter who made the mistake, and then together the team informs the court, outside the presence of the jury, that there was a mistake, the circumstances are explained, and if necessary, the judge will admonish the jury, and the attorneys will draft a special instruction for the jury that the judge will read at the end of the trial. On rare occasion the error could be so serious that there needs to be a mistrial. I can only recall one case but that particular case was really a judge’s error and not an interpreter’s. The interpreter who made the mistake can be sanctioned depending on the seriousness of the mistake and the applicable law. In general, sanctions could range from an informal reprimand to a temporary suspension followed by a probation period, to permanent revocation of the certification, patent or license. There is usually a formal procedure that includes notice and hearing, and the interpreter is allowed to retain the services of an attorney. Depending on the magnitude of the mistake there could be civil responsibility and the interpreter may be required to pay a fine and damages. This can only happen when ordered by a judge or jury after a civil lawsuit where the interpreter will be allowed to present witnesses and legal arguments through an attorney if he wishes to do so. Like all professionals, interpreters are encouraged to carry civil liability insurance (errors and omissions). If covered, the interpreter will be represented by the insurance attorneys and in most cases all he needs to do is to pay his deductible.
When the mistake is really an intentional act by the interpreter to defraud or mislead another individual, he could face criminal charges, and if convicted, he could go to prison.
- Are there laws or regulations that state the requirements that need to be met to perform as a court interpreter, and are there any written duties and rights?
All countries that employ the services of court interpreters as part of their judicial process have legislation that sets the minimum requirements to qualify as a court interpreter and to maintain that status. There are also authorities that regulate the profession setting procedures, protocols, responsibilities and rights. There are also ethical canons, and professional responsibility norms that control the way the services are provided. Some countries, like Mexico, are currently in the process of developing these legislation and regulations where all of the interpreter’s duties, responsibilities, work conditions and rights will be included. In the United States there are two levels of legislation and regulatory agencies: the federal level with the United States Constitution, Title VI of the Civil Rights Act, and the Federal Court Interpreter Act as the legal basis, and the Administrative Office of the United States Courts (AO) as the implementing federal agency. All states either have or are in the process of developing court interpreter legislation, and they all have a state-level Administrative Office of the Courts (AOC) as their implementing agency. In Europe the legal foundation is twofold: it comes from the Directive of the European Parliament and of the Council on the Rights to Interpretation and to Translation in Criminal Proceedings, and from the county-by-country legislation. Court interpreters in Europe have joined forces to ensure access to justice by the founding of the European Legal Interpreters and Translators Association (EULITA). In Canada it is the provincial regulatory bodies that grant the certifications and the Canadian Translators, Terminologists and Interpreters Council (CTTIC) applies uniform standards across Canada. Most regulations and rules set minimum fees for court interpreters and basic work conditions.
- Some government court interpreting websites talk about working with certified and non-certified interpreters; why is that, and what advantages and disadvantages does that bring to the defense, prosecution/plaintiff, or judges?
The only acceptable option is that of a certified interpreter who has studied, tested, and proven to be able to provide the service. This however, is easier to do in smaller countries where there is not a wide variety of languages as there are in a country the size of the United States. In other words, the reason why you see non-certified interpreters even mentioned in these websites is because of the lack of interpreters. It is important to separate non-certified interpreters who work in languages where there is a certification program from those interpreters who work with languages with no certification program. For example, the United States has certification exams for three languages: Spanish, Haitian-Creole, and Navajo; at this time it only offers federal certification for Spanish interpreters, so it is understandable why a very good Russian interpreter is not federally certified. You cannot call them federally certified, but you cannot group them with the Spanish interpreters who failed the federal certification test and by that fact have demonstrated a lack of the minimum requirements to work in federal court in the United States. Depending on their own realities, some states offer certification in certain language combinations and other states do not. There are also administrative law courts in the United States, and remote courthouses in very little towns where there are no certified Spanish interpreters but there are many Spanish speaking litigants because it may be an agricultural center where many immigrants live. The dilemma appears when the system is confronted by a Constitutional mandate to provide interpreter services and a reality that says there aren’t any. It is for these cases that non-certified interpreters are used. In the United States this is happening less at the federal level in Spanish language cases because of new technology that allows a certified interpreter to provide her services remotely from a big city. Certified court interpreters are physically transported to the small towns if the case goes to trial or a long complex hearing is held. Speaking of Spanish court interpreters, the advantage this “compromise” brings to the parties, and in my opinion it is a very questionable one, is that they have an interpreter, they will at least have the best that was found, and the court can always stop the proceeding and demand a certified interpreter be provided either remotely or in person. The disadvantages are obvious: The court and parties will not have an interpreter that at least meets the basic requirements to work in federal court (a certification) The situation worsens when you see courts and attorneys hiring these marginal para-professionals when real certified court interpreters are available solely to save money as these individuals will usually (although not always) be cheaper than a certified court interpreter. There is also another problem in the United States and other countries that will hopefully be avoided in Mexico through legislation: Because the U.S. is a free society, there are plenty of language agencies, language “academies”, and “professional” associations who offer their own self-serving certification so that their lower-level “interpreters” can present themselves as “certified” or “licensed” and make the client believe that they are hiring somebody with professional credentials. There are those who justify this practice for what they call “lesser court cases” such as administrative court proceedings. I completely oppose this practice and I have written and spoken extensively against it.
- There are some suggested self-study techniques to become a good court interpreter, such as expanding your vocabulary, developing your own glossaries, developing your own interpreter techniques, and others. Do you have any tips or advice on how to do it?
I already addressed part of this question in Part 1 of this post when I discussed some of the things that a student can do to become a better court interpreter. I would add that you can expand your vocabulary by picking ten new words from the dictionary every weekday. At the end of a week you will know fifty new words; you will probably remember 15 to 20 and that will be a net increase of 20 words per week. Not bad. I would do the same with legal terminology. Pick a topic and learn the terms. By week’s end you will remember about twenty percent of what you studied and you will have a much better understanding of that legal figure: a contract, court proceeding, corporate document, etc. You can also develop your thematic glossaries; I would do a different one every month and I would use an application for that. I personally use Interplex because I have been using it for many years so I am used to it; I also like the fact that it is compatible with your telephone and tablet so you can have the glossaries with you anywhere you go. Finally, I suggest that when you watch a real court proceeding or when you go to a courthouse to watch a trial in person, you practice your rendition (in court under your breath of course) and when you do so, pay attention to those things that work for you, and develop them; this could be the way you come up with your own personalized note-taking system. When doing this, many years ago, I realized that it was easier for me to remember numbers and figures if I could associate them to the numbers of the jerseys of professional athletes. I am a big sports fan and I have always naturally remembered the players’ numbers, so for me it is very easy to remember an address let’s say on 3272 Main Street, if all I have to do is to remember Franco Harris (32) Mickey Mantle (7) Derek Jeter (2) Main Street. I know this system only works for me, but it works very well, and I came up with it by developing my own personalized technique.
I hope these answers helped you on your quest to become a court interpreter, and I hope they helped others in Mexico and elsewhere, including the United States, who are considering this profession. I also invite all of you to share with the rest of us any other suggestions or input you may have on any of the ten questions. I would love to hear from students, new interpreters, veterans of the profession; anybody who may be interested in helping the next generation to get there.