Court interpreters’ priorities: Their health and to interpret.

August 12, 2020 § 16 Comments

Dear Colleagues:

Although we are still in the middle of a world-wide pandemic, I have heard from several colleagues that some courts in the United States, and elsewhere, are back in session and they are asking court interpreters to attend in-person hearings. Courts may have their reasons to reopen, but I think is a bad idea for interpreters to answer the call at this time. Covid-19 is very contagious and continues to spread all over the United States and many other countries. This is not the time to risk our health, and perhaps our future, to make the not-so-good court interpreter fees. Technology is such that courthouses can hold virtual hearings, or distance interpreting if they want to have in-person sessions. There are solutions for all judicial district budgets, from fancy distance interpreting platforms, to Zoom, to a simple over-the-phone interpretation with 3-way calling and a speaker phone. Federal courts have provided over the phone interpretation in certain court appearances for many years.  Most hearings are short appearances that do not justify risking the interpreter. As for more complex evidentiary hearings and trials, just as conferences have temporarily migrated to this modality, distance interpreting can happen with a few adjustments. If in-person court interpreting is a bad idea right now, in-person interpreting at a detention center, jail or prison, is out of the question. At least in the United States, detention facilities are at the top of places where more Covid-19 cases have been detected.

Court interpreters provide services in accordance to the law and a code of ethics. Neither of them compels interpreters to put their lives at risk just to interpret for a hearing that could happen virtually. I urge you all to refuse in-person interpreting at courthouses and detention centers at this time. Advise judges, attorneys, and court administrators on the available options during the emergency. If after your explanation they insist on having interpreters appearing in person during the Covid-19 pandemic, please decline the assignment. It is obvious your life and health are not a priority for that organization; why should you put them at the top of your clients’ list?

Do not worry about the parties needing interpreting services. That is the attorney’s responsibility. Not yours.

Unfortunately, some of you will sadly agree to physically appear in court to interpret for defendants, plaintiffs, witnesses, and victims. If so, at least demand the following from the courts:

All in-person interpreting must be done with portable cordless equipment. Many courthouses already use it, and for those who do not, explain to judges and administrators this is the same equipment tour guides use. Courts should provide personal transmitters to all staff and regular independent contractor interpreters, and interpreters should take care of the transmitter and take it with them at the end of the day. If this is impossible (although these devises are very affordable) then ask the courthouse to keep them clean and safe, and separate from the receivers the parties will use. Interpreters should always have their own personal microphone (whether it is provided by the court or they purchase it on their own). Ask the receivers be kept in individual plastic baggies, and have the individual using the receiver open the bag and put the devise back in the baggie after the hearing. Never handle the receiver. Ask the court to notify all parties needing interpreting services to bring their own earphones (they can use their mobile phone’s if they are wired). The courthouse should have disposable earphones in stock for those who forgot to bring their own. Earphones are inexpensive and can be thrown away after each hearing.

Finally, interpreters should never disinfect the portable equipment. This is a dangerous chore, you do not get paid to do it, and it is not your job. Disinfecting the equipment goes against all federal and state court interpreter rules of ethics:

“Canon 7: Scope of Practice. An interpreter for a LEP participant in any legal proceeding, or for an LEP party in a court-ordered program, must provide only interpreting or translating services. The interpreter must not give legal advice, express personal opinions to individuals for whom interpreting services are being provided, or engage in other activities that may be construed to constitute a service other than interpreting or translating.”  All states include this canon in their code of ethics (sometimes the number is different). Interpreting equipment should be cleaned and disinfected by the same people who clean and disinfect everything else in the courtroom.

If you are interpreting in person for an agency or for a direct private client, you must follow the same practices. The agency should assume the courthouse duties. As for your preferred direct clients who you could not talk out of an in-person appearance, use your own personal equipment. If you don’t have it, buy it. Do not borrow the courthouse’s. You do not know how clean it is. I would also add the following when dealing with direct clients using my own equipment: Have disposable latex gloves available for you and the person using the equipment. That way you may assist your direct client with the receiver unit if needed. Have spare disposable earphones available if your clients forgot to bring their own. I suggest you use the earphones you get on the plane for free and you never use because you have your own. The protocol for jail visits is: No jail visits under any circumstance. Period.

Even with equipment, maintain a safe distance between you and the person you are interpreting for. No sitting next to the client. Always use and demand others use facemasks. The sound quality is not the best, but removing the mask to interpret is too dangerous. I suggest you wear a mask that ties or has an elastic that goes around your head instead of the ones you wear on your ears. They are more comfortable and stay in place even if you are speaking,

Most judges are rational people of good moral character, but I have heard of some cases when a judge has ordered the interpreter to remove the mask, get closer to the person who needs an interpreter, and other dangerous actions. If so, try to persuade the judge, if that fails, ask for a recess and try to get the court administrator to see the situation from your viewpoint. If this does not work, or if the judge does not let you speak, or you cannot access the administrator, excuse yourself.

State you cannot fulfill your duty as a court interpreter to interpret the totality of what is being said in court because you cannot concentrate on the hearing when you know the judge is putting you in a dangerous situation. Put it on the record, and leave. If the judge does not allow you to leave the courtroom, or threatens you with a contempt order, then clearly put on the record for a second time the same explanation you already gave, and clearly state you are being ordered to interpret even though the rendition will be incomplete, that you are being held against your will, and that you are respectfully giving notice to the judge that if because of his order you get infected, you will bring legal action against the court and personally against the judge. Do not be afraid. You are not doing anything wrong.

On top of all that, I would never interpret in that Judge’s court again.

There are other things we can do as interpreters to protect ourselves in the rare case we end up in front of a judge that forces you to interpret and do things that risk your health and maybe your life.

You can file a complaint with the circuit court (if a federal case) or the court of appeals with jurisdiction over the judge. In federal cases, this is done according to the Judicial Conduct and Disability Act of 1980 (28 USC §351-364) and the Rules for Judicial Conduct and Judicial Disability Proceedings.

If federal, you can send a letter describing the judge’s conduct to the Federal Judges Association (FJA) (https://www.federaljudgesassoc.org) or to the State’s judges association in local matters.

Send a letter for publication on the American Bar Association (ABA) Journal Magazine, or to the State Bar Bulletin so attorneys and others learn of the incident and apply pressure on this individual.

Contact your local non-English radio and TV stations (for Spanish speakers Telemundo, Univision and Azteca America) and suggest an investigative report on how this judge is putting those who appear before him or her, and need interpreting services, at risk during the pandemic.

You can also talk to an attorney and explore the possibility of a lawsuit against the judge and courthouse for negligence.

Finally, write a letter to that courthouse’s chief judge and court administrator informing them that, regardless of the outcome, you will never work in that courtroom again. The letter should detail everything the judge said and did, including past episodes witnessed by you. A person with such a bad attitude did other bad things before.

Court interpreters perform an essential job for the administration of justice, everyone who needs an interpreter should get one, but certain things are above the job; one of them that should always come first is our health. I now ask you to share with us your in-person court experiences, in the United States or elsewhere, during the pandemic.

This road to hell is paved with good intentions.

March 7, 2019 § 1 Comment

Dear Colleagues:

Those who want to help us sometimes hurt us the most.  Court interpreters in Oregon face a situation faced by many colleagues elsewhere in the United States and abroad.

Often, while interpreting in a trial or evidentiary hearing, Oregon court interpreters are asked to sight translate lengthy documents they never saw before, or even worse, they are expected to transcribe and translate audio or video recordings during court breaks. Because the judiciary only covers the cost of interpreting services in courthouses and detention centers, as in many other jurisdictions, attorneys trying to save money use the services of interpreters paid by the court to translate and transcribe evidence otherwise having to be translated before trial by interpreters and translators paid by attorneys and their clients.

A well-intentioned effort to correct this practice, led by the Oregon Judicial Department Court Language Access Services (CLAS) filed a proposed charge to the Uniform Trial Court Rules (UTCR) on November 7, 2017.  Motivated by the desire to protect court interpreters, the quality of a rendition, and no doubt its own budget, CLAS proposed a change to UTCR Rule 2.010(9)(e)

Unfortunately, the proposed change was drafted with budgetary considerations as a priority, and without real knowledge of the role of the interpreter in court. The result, if it goes into effect as written on August 1, will hurt court interpreters in Oregon, the profession, and equal access to justice in that state.

Reading the explanation of the proposed amendment correctly states the abusive, incorrect use of court-sponsored interpreter services by attorneys as described above; it also recognizes the complexity of transcription and translation, and how difficult it is to hear and understand poor quality recordings:

“…• Transcription often requires additional resources that are not available during a court proceeding due to lack of time, the prevalence of slang and abbreviations in offered documents, and the inability of the interpreter to ask for clarification from the maker of the document;

The explanation also addresses potential ethical issues:

“…When an interpreter is asked to provide a transcription for one party, the interpreter loses the appearance of neutrality, which conflicts with the interpreter’s ethical obligations and makes them a potential witness…”

Unfortunately, and most likely unwillingly, the explanation begins with a very dangerous statement: “…Interpreters are trained to interpret spoken word, not written word…”  By saying that, and inserting it as the main argument to amend the Rule, CLAS is not only contradicting the Oregon Code of Professional Responsibility for Interpreters in the Courts, it is making an incorrect statement that erases one-third of the court interpreter practice, and negates our profession.

The Code of Professional Responsibility for Interpreters in the Oregon Courts reads:

“1. Accuracy and Completeness. The interpreter shall render a complete and accurate interpretation, or sight translation, without altering, omitting anything from, or adding anything to what is stated or written, and without explanation…”  (https://www.courts.oregon.gov/programs/interpreters/i-am/Documents/codeofprofresponsibility.pdf)

The State of Oregon correctly recognizes that court interpreting includes not just simultaneous and consecutive interpretation, but sight translation. Stating that “…Interpreters are trained to interpret spoken word, not written word…” contradicts the Code and diminishes the profession. This is a serious matter because in a world where people are just beginning to recognize, understand, and appreciate our profession, we cannot sit on our hands while a State Agency redefines what interpreters are and do. Even when well-intentioned, these comments motivated by ignorance must be challenged and discredit. The last thing we need as a profession is a “savior” to protect us from sight interpreting. Interpreters, not translators, are the only professionals equipped to sight translate a document and render it as if it was written in the target language. We must educate our clients, and government officials, to distinguish from a document that can be sight translated in a court hearing from a lengthy document that must be translated by a translator, or a video or audio recording that needs to be transcribed and translated by an interpreter who specializes in transcriptions.

Because of this false assumption that interpreters cannot sight translate, and undoubtably motivated by the Judiciary’s desire to save interpreter fee money by banning the use of interpreters on the Court’s dime for sight translating lengthy documents that should go to a translator, or recordings that must go to a transcriber (services that must be paid by attorneys and litigants, not the Court), those proposing the amendment to the rule drafted a disastrous text:

“…{(e) A court interpreter shall not translate or interpret an exhibit during the course of a proceeding. An interpreter may interpret oral testimony regarding the content of an exhibit. A person submitting an exhibit, including a non-documentary exhibit or electronic recording, that is in a language other than English must submit at the same time an English translation and a declaration under penalty of perjury from the translator: (i) certifying that the translation is accurate and true; and (ii) describing the translator’s qualifications.}”  (https://www.courts.oregon.gov/programs/utcr/Documents/18eBCM029jm_Notice-Seeking-Public-Comment-2019-Proposed-UTCR-Changes.pdf)

By saying: “A court interpreter shall not translate or interpret an exhibit during the course of a proceeding” the rules are restricting the scope of an interpreter’s practice. It is making sight translation illegal in Oregon. But the proposed Rule is so poorly written, that it bans sight translation in hearings, but opens the door to more difficult and prone to error interpretations of “oral testimony regarding the content of an exhibit”. Instead of handing a lengthy document to the interpreter for a sight translation, under the proposed rule, an attorney can ask the interpreter to interpret the contents of a lengthy exhibit while the witness is reading it in the source language at the speed of light; without the benefit of first examining the document, if briefly, interpreters have during sight translation.

The proposed Rule will deny equal access to justice to those litigants who appear pro-se because they cannot afford the services of an attorney. Poor people benefit of court-sponsored interpreter services every day. These interpreters sight translate birth certificates in family court, bills of sale in small claims court, medical reports in worker’s compensation court, restraining orders in domestic relations court. These litigants do not have the means to pay for translation or transcription services of these documents; they will not comply with the rule because they will not even know or understand that they now need a certified written translation. Unless the Rule is modified before its adoption, in the words of my Oregon Court Interpreter friend and colleague Adrian Arias, many pro-se litigants in Oregon will face the following message: “As to sight translating your exhibit during the proceeding, due to an access to justice issue, you cannot have access to justice.”

The Rule must be amended to accurately reflect what is really needed for protecting the interpreter, accuracy of the rendition, curtailing abusive attorney practices, and equal access to justice. It should clearly state that lengthy complex documents must be translated and certified by a professional translator before a hearing; that all transcription and translation of recorded evidence shall be done by professional interpreters specializing in transcriptions prior to all hearings; and court interpreters will provide sight translation of documents in a hearing when, in the opinion of the interpreter in the hearing the length of the document is appropriate for a sight translation, and its complexity is so it can be sight translated with no more in depth research process needed for written translations. It should be the interpreter who examines and assesses the document to be sight translated. The Code of Professional Responsibility for Interpreters in the Oregon Courts imposes a duty to assess at all times (their) ability to deliver interpretation services, indicating that when the interpreter has any reservation about his or her ability to satisfy an assignment competently, this should be immediately conveyed to the court. (See Rule 9. https://www.courts.oregon.gov/programs/interpreters/i-am/Documents/codeofprofresponsibility.pdf)

Dear friends and colleagues, we must remain vigilant, and see the final Rule due for recommendation by the Committee on March 8. This is a reminder we need to continue to defend our profession, because even when people propose changes meaning no harm, ignorance of the profession can create terrible consequences. I now invite you to comment on this issue in Oregon, or any other place where you live or practice.

Great news: Awaited changes for Spanish court interpreting are finally here!

March 24, 2014 § 8 Comments

Dear colleagues:

As many of you know, over the last few years there has been a tendency among Latin American countries to switch from their traditional, and much slower, inquisitorial written procedural legal system, based on Roman and Napoleonic Law, to the quicker adversarial oral Common Law system followed by many Anglo-Saxon countries, including the United States. These changes have been difficult and have required a long time. For many decades, and more so within the last twenty five years, many Spanish speaking individuals have been forced to seek the protection and advantages of the American adversarial legal system to assert their rights, exercise their defenses, and create brand new legal obligations. Differences in the two types of systems, and specialized terminology exclusive to them, made it difficult to communicate with accuracy and legal precision complex concepts that are essential to prevail in a contractual situation and in court. It was then that many concepts and terminology were created out of necessity by translators and interpreters in the United States and Latin America. In many cases with plenty of good intentions and in good faith, but without even considering legal figures and concepts. This is how we got the “first generation” of bilingual “legal terminology” born from a linguistic conception without a legal perspective.

Globalization, immigration, and the exchange of goods and services between the United States and Latin America, especially Mexico, brought us a more coherent and consistent terminology and legal doctrine based on comparative law. This made it possible for interpreters and translators (in the United States and Latin America) to work with attorneys and law firms that required an interpreter/translator with a more sophisticated knowledge of the subject matter and correct terminology than a defendant in a criminal case with no formal legal or business background. It is from this point in time that we see translations and hear renditions that make sense to the legally-trained individual, and use the same language and terminology that lay individuals used to hear back in their country of origin.  These terms and legal figures were correct and they could be found in the law; however, they still required of a legal expert interpretation to be correctly matched to their legal counterpart in the other legal system.

Finally this all changed. Due to the tremendous judicial backlog and the need for more transparency in the administration of justice, several Latin American countries decided to reform their procedural legal systems shedding the old written inquisitorial system and replacing it with the faster and more transparent adversarial system where proceedings are oral and open to the public.

There were many that debated the change but Chile and Mexico undertook the greater changes. Chile decided to create a new system based in part on the German legal system. Mexico decided to base its reforms on the legal system of the United States.

Dear friends and colleagues, the journey to an acceptable, accurate and coherent translation and rendition is finally over: On March 5, 2014 Mexican President Enrique Peña Nieto signed into law the new Federal Code of Criminal Proceedings applicable throughout Mexico.  This new legislation will apply to all criminal proceedings at all levels: local, state, and federal. This new system embraces an adversarial system similar to the one applied in the United States with public and oral hearings, rules of evidence taken from the American legislation and adapted to the Mexican culture, and a sentencing system based on the one used in America. The biggest differences between the Mexican and American systems are found in the trials. Mexico will only have court trials, the U.S. has both: court and jury trials.

These new legislation gives us the equivalent legal figures, procedural stages and terminology necessary to do a precise rendition and an accurate translation. Moreover, by integration, reference and interpretation, all substantive terminology contained in the criminal, civil, constitutional, and administrative legislation will now make it easier for any interpreter or translator to use the correct terminology and legal concepts. This legislation has been analyzed and drafted by legal professionals; it contains all required legal concepts and structures needed to have a coherent product, and creates, just like American legislation, a separate but precise legal terminology derived from legal concepts and not linguistic considerations. Remember, this is not English, this is not Spanish. We are talking about legal English and legal Spanish. In fact, we are referring to American legal English and Mexican legal Spanish. Translators and interpreters will be able to communicate the legal message to their clients without any ambiguities. No more “agreement/ contract/convenio/acuerdo/contrato salad.” We now have the correct legal figures for each situation. This new terminology is the one that the brand new Mexican court interpreters and legal translators are learning and will use during the proceedings down there.

Some of our colleagues may resist this change but it is inevitable. Arguments that the terminology is too technical and their clients will not understand it do not apply anymore. This is the same terminology they will hear in their own countries, at least the overwhelming majority of the litigants who are from Mexico, or have a connection with Mexico.  We have to keep in mind that we have been using a combination of terminology that was never correct and some valid terms that are now obsolete. You cannot continue to say something wrong and make it right by mere repetition. It is also important to remember that good court interpreters should widen their practice, and only those who can be understood will work with Mexican attorneys. Even attorneys and judges from other Spanish speaking countries will favor the Mexican terminology as it is legal terminology and not just a translation with no legal foundation. Those of you who may consider taking the Mexican court interpreter certification (not in place yet) in order to work in court south of the border, and even those of you who may want to do depositions in Mexico will need these new legal terms. This is the time to learn and grow. This is the time to be ahead of the rest and find your place in the new market. Unfortunately, this is also the time to become obsolete and irrelevant.

Although the law is already gone into effect, the new legal system will be fully implemented by 2016 so there is time for all of us to learn and be ready.

For all of these reasons I have been studying the new legislation, and because of my unique position as an attorney who knows both, the American and the Mexican systems, and as an interpreter who has plenty of experience in both systems, I have designed a series of workshops on this subject. I will teach the first two workshops based on this brand-new Mexican legal system in Mexico City on March 29 & 30, and in Guadalajara Mexico on April 5. In the United States I will teach these legal changes for the first time on May 16 as an all-day pre-conference workshop within NAJIT’s annual conference in Las Vegas Nevada. I invite you to attend these or other workshops that I will be teaching on this subject, and I invite your participation and comments on this issue right here on the blog.

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