Introduction to Court Interpreting

Holly Mikkelson

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317424574
• Edition: 2
• Topic: Languages & Linguistics
• Subtopic: Linguistics
• Index: Languages & Linguistics

An Introduction to Court Interpreting has been carefully designed to be comprehensive, accessible and globally applicable. Starting with the history of the profession and covering the key topics from the role of the interpreter in the judiciary setting to ethical principles and techniques of interpreting, this text has been thoroughly revised. The new material covers: remote interpreting and police interpreting; role-playing scenarios including the Postville case of 2008; updated and expanded resources. In addition, the extensive practical exercises and suggestions for further reading help to ensure this remains the essential introductory textbook for all courses on court interpreting

1 Introduction

Scope and objective

The purpose of this book is to introduce you to the profession of court interpreting. Like many interpreting specialties, this field is very complex and requires familiarity with a number of subjects, including law, translatiown and interpreting theory, linguistics, intercultural communication, anthropology, and psychology. It would be impossible to cover all such subjects in depth. The intent of this book is, rather, to present an overview of the field and alert teachers and students to avenues of further inquiry.

Court interpreters work not only in courts of law but also in law offices, law enforcement agencies, jails and prisons, and other public agencies associated with the judiciary. They may be known by a variety of names, including legal interpreters, judiciary interpreters, and forensic interpreters. In this book court interpreter/interpreting will be the primary term, although others are used as the occasion requires. All of the settings mentioned above will be addressed throughout the book. It is worth noting that community interpreting or public service interpreting (more or less equivalent terms that are used in different parts of the world) usually encompasses legal interpreting as one of its various settings.

A word about pronouns: To avoid cumbersome use of “he/she” or “his/her” and the ungrammatical use of “they/their,” I will use the feminine pronoun for interpreters throughout this book, unless the context dictates otherwise, since the majority of interpreters are women. For simplicity’s sake, I will use the masculine pronoun for all other general references to individuals mentioned in the book. This is strictly a pragmatic decision and in no way reflects the actual distribution of roles between males and females.

Finally, I will use the term “limited language proficient” (LLP) to refer to those who are not fluent in the language used in court and therefore need the services of an interpreter when they have contact with the legal system. Also for the sake of simplicity, I will minimize the use of academic jargon throughout the book to make it easier to read. The references listed at the end of each chapter, particularly those billed as recommended reading, contain further information on the subjects covered in that chapter.

Role of the court interpreter

According to Morris (2010, p. 35), “interpreted legal proceedings and concomitantly those who interpret at them are a part of every modern country’s judicial landscape, and of the increasing number of international courts and tribunals.” It is generally acknowledged that the role of the interpreter in the judicial setting is to make communication possible despite language barriers that exist between litigants and court personnel. It is a widely recognized principle of law that anyone accused of a crime is entitled to be informed of the charges and allowed to put on a defense. If that person does not speak the language of the court system in which he is being tried, in most countries he has a right to an interpreter. The right to an interpreter in non-criminal cases is not as widely recognized. In any event, the interpreter is viewed as a guarantor of language rights as they are defined in international conventions such as the Universal Declaration of Human Rights of 1948 and the International Covenant on Civil and Political Rights of 1996 (González et al., 2012). In the United States, these rights have been expanded to encompass all aspects of what is known as meaningful language access, defined as “the ability to use services and benefits comparable to those enjoyed by members of the mainstream cultures. It is achieved by eliminating communication barriers and ensuring that the client or potential client can communicate effectively” (Minnesota Department of Human Services, 2015). The interpreter is also considered an equalizer, someone who will put litigants who do not speak the language of the proceedings on the same footing as those who do (Administrative Office of the Courts, 2008). Similarly, in the context of the European Union, individuals who access public services have a right to exercise their language preference (Arzoz, 2008).

Despite the almost universal right to an interpreter in criminal cases, most countries do not have laws specifying who is qualified to act as an interpreter in court proceedings. In places where multilingualism is very common among the educated classes, traditionally an attempt would be made to find a lawyer who spoke a foreign litigant’s language. Thus, in the past, a German tourist involved in an auto accident in Denmark would be assigned a German-speaking lawyer for court appearances, and the lawyer would be expected to keep the client apprised of what was said in Danish in the courtroom. Those days are long gone, fortunately, at least in Europe. Today a greater diversity of languages is spoken by foreign visitors and immigrants, and more explicit provisions are made for the rights of linguistic minorities. For example, an Albanian-speaking refugee accused of murder in Denmark would not be very likely to find a Danish lawyer who spoke his language, and, in any case, would need more than an occasional summary interpretation to follow the proceedings and participate actively in his own defense. Recently enacted regulations and standards, to be discussed later in this chapter and elsewhere in the book, have strengthened the requirements for interpreting in legal settings. As more and more languages come in contact in our ever-shrinking world, and as prosecution and litigation become increasingly complex, the importance of competent interpreting services is also becoming too obvious to ignore.

What constitutes competent interpreting in the legal sphere is not a simple question. Recent writings on interpreting theory indicate that any sort of interpreting is far more involved than merely transferring words from source language (the language of the original message) to target language (the language into which the message is interpreted). The linguistic aspect of the task alone is a complicated process of decoding, abstracting, and encoding; and the cultural and social aspects of communication must also be considered. For the court interpreter, the task is rendered even more difficult by the gap between different legal systems and the hidden agendas often associated with lawsuits. For example, when a judge asks a Hmong refugee whether he is willing to give up his right to a speedy jury trial, the challenge for the interpreter is to convey the concepts of “rights” and “jury trial” to a person from a remote mountain region untouched by the trappings of a modern justice system, and to do so efficiently in order to elicit a meaningful response from the defendant and enable the judge to get through his busy calendar.

Judicial systems throughout the world are often criticized for being inaccessible to the citizens they are designed to serve. Even in countries where public proceedings are the norm, laypersons who observe or participate in court cases are frequently confused and mystified by the language and behavior of legal professionals. In many societies, lawyers are known for their tendency to obfuscate and manipulate by using arcane language. It is often noted that the court interpreter’s role is to level the playing field by overcoming the language barrier, not to put the limited language proficient (LLP) person who receives the interpreting at an advantage over other litigants. In other words, the interpreter is not there to make sure the LLP understands, but merely to give him the same chance anyone else in his place would have if he spoke the language of the court. Thus, a judge’s admonition should sound just as intelligible – or unintelligible – to the foreigner listening to the interpretation as it does to a layperson who speaks the official language of the court. What this means is that court interpreters must master not only the techniques of interpreting and a wide range of registers in all their working languages, but also the complexities of the different legal systems and the “legalese” employed by judges and attorneys in those languages. Interpreters must also become adept at maintaining neutrality as they navigate between the Scylla and Charybdis of defense and prosecution, especially in adversarial judicial systems.

Standards for what must be interpreted vary from one country to the next. In the United States, for example, interpreters are expected to interpret simultaneously every word that is uttered in the courtroom, no matter who the speaker is, when a non-English-speaking defendant’s case is being heard (this would include jokes and asides, comments about other cases, and the like). In contrast, in many countries, the interpreter is not expected or even allowed to provide a simultaneous interpretation of the proceedings, but interprets summaries of evidence consecutively. The interpreter may be prohibited from sitting anywhere near the defendant, making simultaneous interpreting impossible without equipment. In some courts, the interpreter merely provides a consecutive interpretation of the judge’s summary of the proceedings after he has concluded. Often there are no guidelines for interpreters, who are then left to determine for themselves what the defendant or witness should hear. In countries where defense counsel are allowed to act as interpreters, it is obvious that the defendant will receive only a summary interpretation at best.

There are also different opinions regarding how far the interpreter should go in bridging cultural and social gaps in the court environment. At one end of the spectrum are those who advocate strict adherence to the linguistic elements of the message and omission of nonverbal elements such as hand gestures, facial expressions, and tone of voice. In this school of thought, interpreters are barred from explaining, elaborating, or clarifying. Particularly in the adversarial atmosphere of common-law jurisdictions, it is argued that efforts by an interpreter to represent or explain cultural aspects of a message would “tamper with a witness’s credibility” and affect the opinion the triers of fact may have of the speaker (González et al., 2012, p. 1103).

At the other end of the spectrum are those who contend that the cultural gaps are sometimes so broad that focusing exclusively on the linguistic aspects fails to convey meaningful information and serves no purpose. In the case of the Hmong refugee cited above, proponents of the first approach would have the interpreter use periphrasis or a gloss to convey the idea of “right” as accurately as possible in the target language (perhaps a phrase like “privileges to which you are entitled”) and “jury trial” (“members of the community deciding if you committed the crime”) and leave it up to defense counsel to provide further explanation, or to the defendant to request an explanation. The second school of thought would favor intervention by the interpreter to give a brief explanation of the legal system in language the defendant could understand prior to interpreting the judge’s statement. When there is a tremendous disparity in the level of sophistication of, on the one hand, legal professionals, and on the other hand, laypersons (many of whom are illiterate and have no legal counsel), the “universal ethical and professional principles [of neutrality and impartiality] are a mere ideal situation that may be impossible to achieve” (Moeketsi, 1999, p. 12).

Most interpreters take a position somewhere between these two extremes, and every case must be judged according to the circumstances. According to Tipton and Furmanek (2016, p. 69), “approaching interpreter mediation from a perspective of shared responsibility is gaining ground” (emphasis in original). A good overview of the different models of interpreting, meaning the views of what the court interpreter does and should do, can be found in Lebese (2015). These issues are examined in more detail in Chapters 4 and 6; suffice it to say that as a court interpreter you must be aware of the impact of culture on language, and must exercise good judgment in reflecting that impact in your interpreting.

History of court interpreting

No one knows when interpreting began, but it surely dates back further than recorded history. It is safe to assume that the practice of court interpreting is almost as old as the practice of law. In relatively modern history, Sarmiento Pérez (2011) refers to interpreters mediating between Europeans and African indigenous groups in legal contexts, among others, in the fourteenth century. Giambruno (2008) discusses court interpreting in Spanish colonies in the Americas, when as early as the 1500s there were laws stipulating the use of interpreters. Colin and Morris (1996) cite interpreted trials in 1682 and 1820 that were landmarks in English jurisprudence. The first, Borosky and others, was a murder trial involving several languages. Colin and Morris note that “when it came to deciding about who was entitled to an interpreter, class – not linguistic need – was the decisive factor. The person who speaks the best English is the aristocrat – and he gets the best treatment from the court” (p. 177). The second case cited by Colin and Morris, the 1820 adultery trial of Queen Caroline, provided examples of interpreters not only rendering the linguistic content of witness statements, but also explaining cultural differences.

Perhaps the most famous interpreted trials in history were those of accused Nazi war criminals at Nuremberg in 1945–46. This event is regarded as a watershed for the interpreting profession because it was the first instance of the use of equipment to provide simultaneous interpretation. The Charter of the International Military Tribunal provided, in Articles 16 and 25, that to assure the defendants of a fair trial, the proceedings had to be translated into a language they understood. In addition, the members of the International Military Tribunal represented all the countries of the victorious Allies, and did not share a common language. And finally, as Gaiba (1998, p. 33) points out, “The Nuremberg Trial was one of the first major international media events, and there was the need to keep the international public constantly informed.” For all these reasons, it was decided that the only way to conduct these multilingual proceedings efficiently was by using simultaneous interpretation.

Recruiting qualified interpreters in the four working languages of the trial was a monumental task. An initial screening was conducted to identify individuals with fluency in two languages in a wide variety of subjects; those who passed the screening were asked to interpret in a mock trial. Because no one had ever been trained in simultaneous interpreting, few candidates passed this portion of the test. Gaiba (1998) states:

Given the stressful conditions of the job, interpreters had to have self-composure under pressure and the ability to concentrate in difficult situations. The job required the mental agility to hear and speak at the same time, and to adapt instantaneously to the stimulus of the source language. This means that interpreters had to be able to quickly find an alternative if the best translation did not come to mind, as they were not supposed to stutter or stop. They had to be able to make decisions quickly and accurately. The job also required great mental and physical efforts because of the need to interpret both speedily and accurately, and to adapt to the speed of the speaker. Finally, interpreters were required to have a good voice and clear enunciation, so that it would be easy to listen to them for hours at a time.

(p. 47)

Only five percent of the people tested, including experienced consecutive interpreters, were able to perform adequately (Gaiba, 1998, p. 48). According to Baigorri-Jalón (2014),

The selection process was based more on the intuition of the “recruiters” than on a thorough testing system. Not only did such a system not exist, considering that the mode of interpreting was new, but there was also no time to develop one because of the urgency of the matter.

(p. 219)

The individuals selected in this screening process were then given several weeks of training, which consisted of interpreting mock trials and receiving feedback on their performance. The training program continued throughout the trial as new candidates were identified. There was a high turnover among interpreters in Nuremberg because of the horrifying nature of the evidence and the stress of interpreting simultaneously. As Baigorri-Jalón points out, “It was not unusual for an interpreter to meet all the prerequisites and then go down in flames when it came time to provide live interpreting” (p. 219). Nevertheless, many went on to pursue careers as international conference interpreters.

These accounts of historic trials show that although many talented and competent individuals have provided interpreting services in courts of law over the centuries, court interpreting was never recognized as a full-time occupation. Only recently has the profession been practiced by individuals who have chosen court interpreting as a career and received specialized training in it. Even today, many veteran court interpreters began working in the field by accident, because they happened to speak a certain language that was required for a court case, and they learned the techniques of interpreting “by the seat of their pants.” As standards rise and consumers of interpreting services become more sophisticated, however, newcomers to the profession find that formal training is necessary to enter the field.

The first regulation of the quality of interpretation in the judiciary began in the late 1970s. Sweden was among the first European nations to regulate the practice of interpreting, introducing a state authorization exam in 1976 (Ozolins, 1998). In the United States, the Federal Court Interpreters Act of 1978 required that Spanish interpreters working in the federal courts demonstrate proficiency by passing a certification exam (González et al., 2012). At the same time, the Registry of Interpreters for the Deaf (RID) developed a legal skills certificate as a complement to the general certification exam it had been administering since 1972. Australia began requiring a proficiency exam for interpreters in 1978, Canada in the early 1980s. Several individual states in the U.S. followed the lead of the federal courts and adopted certificat...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of figures
• Acknowledgement
• 1. Introduction
• 2. Court interpreting laws and regulations
• 3. Legal traditions of the world
• 4. Criminal and civil procedure
• 5. Interpreting for law enforcement
• 6. The code of ethics
• 7. Interpreting modes and strategies
• 8. Remote interpreting
• 9. Specialized topics, resources and references
• 10. Professional issues and continuing education
• Appendix A
• Appendix B
• Index