1 An Unchallenged Assumption
In the past few decades, the increased rates of international trade, travel and migration have led to a rising number of criminal defendants and courtroom participants who do not speak the language of the court in which they find themselves. Such individuals present numerous problems for courts, mainly because criminal justice systems, with some notable exceptions, are monolingual in nature and ill-equipped to handle multilingual proceedings. The traditional solution to any courtroom linguistic problems has been the appointment of a court interpreter, or, more aptly described, the appointment of a multilingual individual to interpret, as it is not uncommon for unqualified and untrained individuals to be drafted into service by the court (Stern 2011, p. 339; see also Chap. 6). This is even more true when the language in question is itself uncommon in the area. Once appointed, court interpreters have usually been left alone by courts to do their job with little oversight . Courtroom participants primarily desire to communicate across any language barriers and they are generally pleased when the interpreter allows them to do so. Removal of the language barrier permits the court to revert back to its innate monolingual nature under the assumption that a comparable fair trial can be achieved through the simple addition of an interpreter. But what if this narrative is an illusion, an overestimation of the corrective capacity of court interpreters?
The difficulty with this narrative is that the utilization of a court interpreter comes at a price. Not all interpreters are created equal, and even the best interpreters are not automatic machines capable of flawless performance at all times. Interpreters exercise judgment, alter information, transform speech styles, and generally make a multitude of undetected alterations that can and do influence the trustworthiness of a criminal trial. Even something so apparently trivial as the accent of the interpreter can have an impact on the proceedings : French Canadian jurors view witnesses who testify through a European French interpreter more favorably than those who are interpreted by one who speaks Canadian French (Berk-Seligson 1990, p. 146). The shortcomings of court interpretation have long been known to the interpreting community, but have received little acknowledgement from legal scholars. This lack of awareness has led to a scarcity of scholarly attention concerning the legal effects of court interpretation within the criminal justice system, which in turn has allowed courts to operate under the assumption that the mere appointment of an interpreter is a sufficiently corrective measure.
2 Objectives of the Book
This book tests this assumption by assessing the impact of court interpreters on the integrity of the right to a fair trial under international law. Specifically, it analyzes a broad range of examples showing the various different manners by which an interpreter can influence a criminal proceeding. Alterations of both information content and speech style are considered, as are the numerous systemic issues that arise from the appointment of a court interpreter. These factors are evaluated to determine the extent to which they may negatively affect an accusedâs right to a fair trial. Based upon this analysis, suggestions as to how to further safeguard the right to a fair trial in this particular context are presented.
With respect to fair trial rights, the focus of the study is on the fairness of criminal proceedings at the national level, as measured against international standards. Given that Article 14 of the International Covenant on Civil and Political Rights (âICCPRâ) is generally accepted as customary international law (if not jus cogens) (Boas et al. 2011, p. 12; Boas 2010, pp. 329â330; Robinson 2009, pp. 6â7, 11; Orakhelashvili 2006, p. 60; Turner 2005, p. 22), the fair trial rights contained therein are used as benchmark standards. In order to gain a fuller understanding of the intricacies of these rights, it is occasionally necessary to consult alternate sources of international law that contain similar wording. In particular, Article 6 European Convention for the Protection of Human Rights and Fundamental Freedoms (âECHRâ) proves useful, since it contains language that is nearly identical to Article 14 ICCPR. As such, although certainly not conclusive, interpretations by the European Court of Human Rights (âECtHRâ) of the ECHR fair trial rights are at worst persuasive authority as to the meaning of the ICCPR rights (Nowak 2005, p. 307; McGoldrick 1994, p. 438).
While such cross-fertilization of legal standards is a normal and useful occurrence, (de Zayas 1997, p. 696), only minimal consideration is given to the caselaw of the international criminal tribunals (the International Criminal Court [âICCâ]; the International Criminal Tribunal for the Former Yugoslavia [âICTYâ]; the International Criminal Tribunal for Rwanda [âICTRâ]), specifically because the interpretation procedures exhibited in these courts are very different from those used in domestic proceedings and are not sufficiently analogous to allow useful comparatives. Furthermore, while it is true that national courts contribute considerably to the interpretation of international treaties such as the ICCPR, the sheer volume of material arising from these courts makes their consultation well-beyond the scope of this book. As such, even though the focus is on fair trial standards as applied in domestic criminal proceedings, no particular jurisdiction is specifically targeted or discussed, though the English-language nature of the work naturally leads to a healthy inclusion of considerations familiar to common law jurisdictions.
3 Structure of the Study
Following upon this introduction, Chap. 2 discusses the legal right to an interpreter under international law, since one cannot fully understand how courtroom interpreters affect an accusedâs right to a fair trial without first understanding the circumstances which mandate the appointment of an interpreter. Furthermore, many of the legal and practical issues that arise from interpreter performance are well-illustrated by a detailed examination of an accusedâs right to an interpreter . Thus, a thorough treatment of the subject serves as an excellent introduction to the overall topic. Chapter 3 provides a general introduction to the mechanics of courtroom interpreting. Legal practitioners often fail to appreciate the complexity and ambiguity of the task that interpreters perform. However, by focusing on the theoretical and practical aspects of courtroom interpreting, this Chapter seeks to demystify the interpreting process for a legal audience. This facilitates a better understanding of the unseen complications that interpreters cause throughout legal proceedings.
Chapter 4 focuses on explaining the different components of the right to a fair trial as set out in Article 14 ICCPR. The discussion is not comprehensive, though, as the use of interpreters does not impact every aspect of every fair trial right. Rather, only those rights (and the specific facets of those rights) that are affected are examined. Included in this Chapter is a short explanation as to the relationship between court interpreters and the specific rights discussed. Having clarified the role of interpreters in the courtroom, and the particular fair trial rights at stake, Chap. 5 presents and analyzes the multitude of problems created by the usage of court interpreters in criminal proceedings , as well as their possible impacts on the right to a fair trial. These complications are divided into two groups: those related to conscious decisions on the part of the interpreter and those that arise as an unintentional side-effect from the inherent difficulty of the interpreting process itself. Following upon this discussion, Chap. 6 examines the numerous systemic issues associated with court interpreters, such as fatigue , that likewise complicate criminal proceedings . These aspects are analyzed for their possible effects on an accusedâs right to a fair trial.
The role of Chap. 7 within the study is to bring all of these disparate strands of information together in one final analysis in order to assess the overall impact of court interpreters on the right to a fair trial. Emphasis is not only placed upon the individual fair trial rights as discussed in Chap. 4, but also on the overall fairness of the proceeding. A final conclusion sets out a series of proposals meant to decrease the impact court interpreters have on criminal proceedings.
4 Conclusion
Any academic work concerning interpreting necessarily involves the usage of examples in multiple languages. Some care has been taken, where such instances occur, to render these into English for the casual reader. However, the fact that this study is written in English, and is primarily concerned with English language examples, also necessarily means that some of the interpreter errors and linguistic distortions that it highlights may appear specific to that language and not easily transportable to other linguistic contexts. An example is the common usage of so-called false friends by interpreters (de Jongh 1992, p. 77). However, while the specific false friends discussed in the text may be particular to a certain language combination (such as âactuallyâ-âaktuellâ in English-German), the practice of mistakenly using such apparently (but falsely) equivalent terms is common to interpreters working in nearly every language combination. As such, even though the discussion may appear bound to the particularities of English, the practice is, in most instances, applicable to interpreters who work in other languages as well. Regardless, the intent of the study is not to detail every possible interpreter error in every language combination in the world; this is an obviously absurd task. Rather, it is to assess the myriad ways that court interpreters may have an impact on the right to a fair trial by analyzing those interpreter actions and errors that appear most consequential and most prevalent. For this task, it is sufficient to confine the study to a single âhomeâ language.
In addition, some explanation must be given with respect to certain choices of phrasing and vocabulary that have been made throughout the book. To increase the readability of the text and to reduce unnecessary repetition, the terms âcourt interpreterâ and âcourtroom interpreterâ have been used interchangeably. Likewise, although âto translateâ is normally restricted to the context of written texts, while âto interpretâ generally involves spoken words, here each of these has also been used, unless otherwise specifically noted, as generic terms meaning the alteration of words from one language to another. However, the designations âtranslatorâ and âinterpreterâ are not used interchangeably, but rather remain restricted to their specific contexts (written and oral, respectively). Another linguistic choice concerns the g...