What judges and attorneys need to know about interpreters in the legal process..
NAJIT Judith Kenigson Kristy
1. Use credentialed, preferably certified, court interpreters for
in-court and out-of-court events.
Verify the interpreter’s
credentials. If it is an in-court proceeding, make sure the
interpreter is sworn in before the proceeding begins.
• Verify credentials by consulting your state or federal court roster,
or by calling your local court (clerk’s office or interpreter’s
office). Judges should conduct a voir dire of the interpreter and
ask for credentials to be stated on the record.
• Do not use untrained bilinguals. It is inappropriate to use
family members, children, foreign language students or
teachers, court staff, or law enforcement officers as interpreters.
• Don’t allow defendants to bring their own interpreters — not
only does this practice create potential conflicts of interest, but
the ad hoc person acting as “interpreter” may not be trained or
competent.
• Don’t ask for a translator when you need an interpreter — they
are not interchangeable. Translators work with
written communication. Interpreters work
with oral communication.
2. Be aware that an interpreter creates an
even playing field for limited-English
speakers; an interpreter provides no
advantage or disadvantage.
• Interpreters should never interject their own
knowledge, comments, or opinions into the interpretation.
Interpreters are prohibited from advocating for any
party.
• Don’t ask interpreters what they think a defendant or witness
might or might not have understood; it is not their area of
expertise.
3. Use the interpreter to facilitate direct communication with
limited-English proficient parties, not as a “go-between.”
• Address the client directly in English, as if he understood
everything you are saying. The interpreter will then repeat
what you have said in the required language. This avoids the
use of indirect speech (e.g., “Ask him if ...” or “He says that...”),
which can create confusion and a flawed record.
4. Check to make sure that all speech, by all parties, is being
interpreted.
• If someone is speaking and the interpreter’s mouth is not moving,
there is a problem. If someone makes a lengthy statement
and the interpretation is a few words, or vice versa, there is a
problem. The interpreter’s job is to interpret everything that is being said— no omissions, modifications, or additions.
• In court, an interpreter should be interpreting simultaneously
for a defendant. If a non-English speaking witness testifies, an
interpreter should interpret the questions and answers consecutively
so that a clear record may be made.
5. To
be understood, speak clearly at a moderate speed and an
audible volume.
• Unclear speech cannot be accurately interpreted. Avoid interruptions
and overlapping voices. Avoid long, convoluted questions.
Unfamiliar jargon or acronyms may cause a problem for
the interpreter.
• Although reluctant to interrupt the give-and-take of
courtroom exchanges, interpreters have an ethical obligation
to ask for a repetition if speech is too low, too fast, too lengthy
or incomprehensible ( due to the use of unknown references,
heavy accent, jargon, abbreviations, or acronyms).
Very long or complex questions and answers
can result in interruptions or incomplete
rendering by the interpreter, causing
confusion.
6. The interpreter’s only task is to
interpret. In order to conserve impartiality
and confidentiality, the interpreter should not
be asked to be alone with a defendant. Whenever
possible, the interpreter will exit the room when the attorney
exits the room.
• Interpreters may not reveal information they have interpreted,
but no privilege protects them if communication occurs when
the attorney is not present. Any explanations that need to be
made should be made by the attorney and then interpreted.
The interpreter may, however, note and report to the attorney
any confusion due to culture or vocabulary, and make an
appropriate request for clarification.
7. Provide interpreters with the information and support
needed to get the job done.
• The more information an interpreter has about a case, the better
he or she can interpret. Arrange for interpreters to receive or
have access to documents related to the assignment: complaints
and indictments with supporting documents, investigative
reports, motions and responses, witness and exhibit lists, bank
and telephone records, PSRs, etc.
• Whenever possible, try to use
the same interpreter for both in-court and out-of-court events in a given case.
Whenever possible, inform defendants, court participants, and
jurors about the interpreter’s role.
8. In order to ensure an accurate record, provide a team of two
interpreters for any lengthy or complex proceeding.
• Studies have shown that interpreters, no matter how experienced
or competent, suffer mental fatigue after about 30
minutes of continuous interpreting. The use of a team prevents
interpreter fatigue and ensures accuracy. Teams act as a safety
net, so that any errors may be corrected and terminology
queries answered. When a large number of defendants will
be present at a proceeding, it may be necessary to hire more
interpreters to facilitate attorney-client consultations.
9. A conflict of interest is not the same for an interpreter as for
an attorney.
An interpreter can work for either side or both
sides of a case. The only prohibition is that an interpreter
cannot be a witness in the same case in which he is acting as a
proceedings interpreter.
10. Interpreters cannot be advocates or take sides.
They are neutral
officers of the court and thus may work for either side, or both
sides, of a dispute. A proceedings interpreter should reveal to
the judge and parties any prior contacts with the case. However,
a conflict does arise if an interpreter may be called by one of the
parties as a witness. An interpreter cannot testify as an expert witness and
also work as a proceedings interpreter in the same
case.
Foreign-language evidence should be handled appropriately.
The party offering the evidence should obtain prior transcription
and translation of any tape recordings. Foreign-language
documents introduced into evidence should be accompanied
by a translation. (The translation may be stipulated, or
authenticated through testimony.) A sound file or tape recording
should never be translated “on the spot” in court.
• Just as there are experts in fingerprint identification, there are
experts in transcribing and translating recorded material for
evidentiary purposes. Find and use an expert for this kind of
work. Never ask an interpreter to render a simultaneous interpretation
of recorded material in court — at best, the results
will be approximate and guesswork, not evidence.
Interpreters are support staff for your court: please help promote
an atmosphere of consideration, respect, and cooperation among
those who work with them. When interpreters work in the judicial
system, they need a table in the courtroom for notebooks or laptops,
a cup of water, a place to store their belongings, and a place to rest
when off duty. Your kindness is much appreciated.
Article Courtesy NAJIT
