Sunday, January 1, 2012
by: Sara J. Payne
Section: Features/Substantive Law
Ms. Payne is an associate at Gustafson Gluek. Her practice focuses on antitrust, products liability, and consumer products
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Since 1997, Hennepin County District Court has provided interpreters for over 150 different languages (see below). The court receives 13,000 interpreter requests each year. On average, Hennepin County courts use interpreters for 55 hearings per day.
Non-native English speakers have constitutional and statutory rights to the use of an interpreter in the courtroom. Understanding how this process works, and our responsibilities as attorneys, facilitates a more effective, efficient court hearing and preserves the rights of our clients.
Why Do We Need Interpreters?
Interpreters play an important role in due process. Over 120 languages are spoken in the state of Minnesota. The constitutional guarantee of due process applies to everyone, not just fluent English speakers. A judicial officer must appoint a qualified interpreter for persons handicapped in communication to prevent injustice and to assist them in defending themselves. Minnesota statutes provide for court-appointed interpreters in both civil and criminal matters when a party cannot fully understand the proceedings because of difficulty in speaking or comprehending the English language.1
Since 1997, Hennepin County District Court has provided interpreters for 165 different languages. (See sidebar.) The court receives 13,000 interpreter requests each year. On average, Hennepin County courts use interpreters for 55 hearings per day. The county employs two full-time, certified Spanish interpreters, contracts with the country’s only Somali language certified interpreter as well as certified Hmong and Vietnamese interpreters, and utilizes dozens of interpreters from the statewide roster. These interpreters cover a wide variety of hearings at each of the eight different courthouse locations around the county.
How Can I Get an Interpreter For My Client?
If your client is not a native English speaker, and will need an interpreter at a court hearing, contact the judge’s clerk as soon as possible. It is not always clear when an individual may need an interpreter. The best thing to do is to ask your client. Although he or she may be able to communicate with you at your office, the courtroom is an entirely different environment. Even native English speakers can get flustered and have a difficult time understanding the proceedings in a formal courtroom setting. Court proceedings can be especially confusing and intimidating for non-English speakers since other countries’ legal systems and concepts often vary from those of the United States. Language and cultural barriers can make it difficult for parties to voice a lack of understanding.
When you contact the judge’s chambers, be prepared to give the clerk your case number, the party’s name, and the language the party speaks, and to confirm the date and time of the hearing. It is important to specify exactly what language your client speaks. For example, indicate Mandarin or Cantonese, rather than Chinese. The judge’s clerk will relay this information to the court’s scheduling unit. The scheduling unit will then find an interpreter that speaks your client’s language and arrange to have him or her present for the hearing. Due to the overwhelming number of interpreters needed and the frequency with which hearings are scheduled and rescheduled, you will not know the identity of the interpreter in advance.
What Are the Interpreter’s Qualifications?
There are two types of interpreters working in Hennepin County courts: certified interpreters and roster interpreters. Certified interpreters have passed the Court Interpreter Certification exam administered by the Minnesota Supreme Court (or passed the certification exam in a state with reciprocity). The exam is available in Spanish, Hmong, Somali, Arabic, Mandarin, Cantonese, Haitian Creole, Laotian, Korean, Russian, Vietnamese, French, and Portuguese. There is a comparable exam for American Sign Language administered by the Registry of Interpreters for the Deaf. The Court Interpreter Certification exam is notoriously difficult, and many bilingual applicants are never able to pass. In addition to the exam, a certified interpreter must also demonstrate good character through a background check, pass a written ethics test, complete a two-day training, and file a written affidavit agreeing to be bound by the Code of Professional Responsibility for Interpreters in the Minnesota State Court System.
Inclusion on the statewide roster requires the same written ethics test, two-day interpreter orientation program, and affidavit agreeing to abide by the Code of Professional Responsibility. Roster interpreters do not have to take a language proficiency exam. They must, however, provide some proof of language proficiency such as a high school diploma or TOEFL score, although there are exceptions for speakers of exotic or rare languages. Interpreters are often required or strongly recommended to maintain professional liability or errors and omissions insurance.
Understanding the role of the Interpreter
Types Of Interpreting:
Courtroom interpreters engage in three different types of interpretation: consecutive, simultaneous, and sight translation. During consecutive interpretation, the interpreter delivers the speaker’s message in segments. The interpreter listens and takes notes as the speaker speaks. When the speaker pauses or finishes speaking, the interpreter relays that portion of the message. Then the speaker continues speaking. This method of interpretation is generally used for witness and party testimony. Consecutive interpretation requires an excellent short-term memory and a high level of proficiency in both languages that many bilingual people do not possess.
Simultaneous interpretation is generally used at trial. During simultaneous interpretation, the speaker speaks continuously with no pauses. The interpreter must listen to what is being said at the same time that he or she is interpreting. During simultaneous interpretation, an interpreter cannot pause to think about the meaning or a word or ask clarifying questions. Simultaneous interpretation is very fatiguing; interpreters generally work in pairs and switch off every 20 to 30 minutes to keep their ears sharp. Simultaneous interpreters will often speak into a microphone connected to headsets which are worn by the parties in need of the interpretation. The use of headsets allows the hearing to proceed uninterrupted.
The third type of interpretation is sight translation. Sight translation is less common in the courtroom, but a judge may ask an interpreter to translate a document for a party. The interpreter reads a written document and orally translates it into the party’s native language. In Hennepin County, a number of court forms have already been translated into several more prevalent foreign languages. These forms are also available on the court’s website.
For most hearings, an interpreter is physically present in the courtroom. However, there are occasions when the interpreter is present electronically. Hennepin County recently launched a remote interpreter program that serves a few of the county’s satellite locations. A certified Spanish staff interpreter covers certain hearings remotely via state of the art technology. (Additional interpreter training is required for remote interpretation.) The remote interpreting program saves county resources in interpreter travel time, and when hearings are postponed or rescheduled at the last minute. The county has received positive feedback, and is looking for ways to expand the remote interpreting program. The court’s website contains a guide to remote interpreting for attorneys.
The Goals of Courtroom Interpretation:
Ideally, before going into a courtroom, the interpreter knows what the case is about, and has been able to prepare relevant vocabulary. However, given the bulk of cases and frequent rescheduling, it would be impractical for the judge’s chambers, attorneys, and the scheduling department to provide advance materials to each interpreter. Interpreters, therefore, walk into a courtroom knowing very little or nothing about the individual cases for which they will serve as interpreter.
Despite this disadvantage, the interpreter’s ultimate goal is to put non-English speakers on an equal footing with native speakers. Interpreters interpret precisely what is said, preserving the tone and level of the original language, adding and deleting nothing. Julie Manrique, a full-time certified Spanish interpreter in Hennepin County, points out the importance of preserving the tone and emotion of a party’s speech. “Not only does the tone convey important meaning,” Ms. Manrique said, “but translating in a deadpan voice can change the meaning of speech and add unintended humor to the proceeding.” Moreover, interpreters must translate everything the party said, including vulgarities and insults. They cannot edit or sanitize what someone has said, as uncomfortable as the language may be at times.
Preserving the context of speech is also important. A good interpreter develops context through decollage or “ear-voice” span, which is the lapse between when a non-native English speaker says something and when the interpreter says it. A good interpreter has a larger ear-voice span of 7 to 10 words. Ear-voice span allows an interpreter to understand the context before speaking. The larger the ear-voice span, the better the interpreter understands the context of the speech, and can choose the most appropriate word. Conversely, the larger the ear-voice span, the more difficult it is to retain exactly what is being said. If a speaker continues for too long, the message can become garbled, much like playing a game of telephone. Interpreters must strike the right balance between context and retaining every word that is said.
What Can Attorneys Do?
As attorneys, we can facilitate the process of courtroom interpretation through reasonable expectations: speaking slowly and clearly, diligently preserving the record, and advocating for our clients.
First, attorneys need to understand the proper role of the interpreter. An interpreter’s job is to convey exactly what a speaker has said. An interpreter cannot explain the legal process to a party, complete small tasks for the attorney, or answer a party’s questions—however trivial. As with any other case, the attorney is responsible for preparing and educating the client and communicating with the court.
Next, attorneys can aid the process by being conscious of how they speak. Attorneys tend to speak quickly and use a lot of legalese. Attorneys can help ensure that non-English speakers understand what is said by speaking slowly and consciously. Regardless of our normal patterns of speech, we can aid interpretation by making a conscious effort to slow down. Avoiding extraneous legal terms when simple words will do and unnecessary colloquialisms will also assist the process. For example, Ms. Manrique points out the difficulty of translating the expression “treating someone with kid gloves” into Spanish. The speaker is not actually referring to an article of children’s clothing, and interpreting a literal translation would change the meaning and confuse the non-English speaker. Trying to find a Spanish equivalent can be difficult, as well as denigrate the message. Being aware of the way that we speak and making an effort to speak clearly can greatly aid the process of the interpretation.
Finally, attorneys should know that no interpreter is infallible. No one, regardless of the extent of their training and experience, can go through an entire trial without making a mistake. The cognitive demands are simply too difficult. Sebastian Mesa, a certified Spanish interpreter who has worked in Minnesota courtrooms for 5½ years, puts it this way, “Interpreting for hours is like doing equations over and over in your head; eventually you’ll make a mistake.” The consequences can be severe if an interpreter fails to interpret a legal proceeding accurately and fairly. Poor interpretation may fail to capture the eloquence of a judge, attorney, or witness. Questions and testimony can be distorted, leading a judge or jury to be confused or uncertain. Especially in criminal matters, poor interpretation can result in a wrongful conviction or acquittal. However, there are things that interpreters and attorneys can do to improve the integrity of the proceedings.
Improving the Integrity of the Interpreting Process
The most important thing interpreters can do is to quickly bring any error to the court’s attention. Even the smallest detail can make a difference in accurately conveying a message. Mr. Mesa recounts one of his first courtroom experiences. He was interpreting for a Spanish-speaking defendant, and, being new, wanted to make a good impression. During cross-examination, the prosecutor asked the defendant what he had been doing. The defendant mumbled his answer a bit, but Mr. Mesa heard, “Fui a buscar mi droga.” [I went to look for my drug.] Mr. Mesa couldn’t believe the man would so freely admit that he had drugs. But, wanting to do right by his role, he repeated exactly what the defendant said, “I went to look for my drug.” The prosecutor stopped in his tracks and stared at the defendant. The defense attorney went pale. The judge looked at the defendant in disbelief. Mr. Mesa thought, “How could the defendant be so dumb? No one had asked about drugs.” In fact, the defendant was not dumb. He simply used a Spanglish word, common in Mexico, when stating “Fui a buscar mi troca.” [I went to look for my pickup truck.] A few seconds passed by, and something felt wrong. Mr. Mesa believed he must have misheard the defendant. He asked the defendant to repeat his previous statement. The defendant did so, this time more clearly pronouncing “troca.” Mr. Mesa told the judge he had made a mistake, and clarified what the defendant had actually said. It was hugely embarrassing, but Mr. Mesa was satisfied that he did the right thing.
Doing the right, albeit embarrassing, thing had a significant impact on the fate of the defendant. Mr. Mesa cautions that interpreters must leave their pride at the door. When interpreters enter a courtroom, they must own up to any mistake as soon as they become aware of it. There is no room for ego if interpreters are to do justice to their role in providing “accurate translation” instead of due process of law to non-English speakers.
Attorneys, too, have a role to play in ensuring the integrity of the process. Attorneys are responsible for paying attention to the interpretation and making a record of any issues. If we are not willing to make a record, we lose an important check and balance. Attorneys often become frustrated with the additional time interpreting requires and simply want to expedite the proceeding. However, in the interest of equal access to justice, attorneys must make sure their clients get a complete and accurate interpretation.
Mr. Mesa provides several red flags that attorneys can look for during the interpretation process, such as if there is a significant difference in the length of interpretation compared to the original testimony, if the interpreter and non-English speaker engage in extraneous conversation, if the non-English speaker appears to ask the interpreter questions, if the interpreter appears to lead the non-English speaker or tries to influence answers through body language or facial expressions, if the interpreter acts in a professional manner, and if the interpretation is being done in the first person.
A cavalier attitude can result in clients receiving less than the due process of law to which they are entitled. Even when a court reporter is present, the record made is in English. There is no check on the interpretation. If an attorney suspects that an error or impropriety has occurred, he or she must object on the record. Attorneys play a crucial role preserving the integrity of the judicial process.
The Minnesota judicial branch has a significant amount of information about courtroom interpretation including FAQs, a database of statewide roster interpreters, tips on working with interpreters, information about how to become an interpreter, and information on how to file a formal complaint about a roster interpreter. This information can be found at: http://www.mncourts.gov/?page=304.
Hennepin County is fortunate to have a cadre of qualified interpreters. By understanding the role of interpreters, and explaining that role to our clients and others involved in the proceeding, we, as attorneys, can improve the efficiency and effectiveness of the judicial process. Moreover, attorneys bear ultimate responsibility for whether their clients are getting a complete and accurate interpretation. Even the best interpreters occasionally make mistakes. If the bar is invested in the ideal of equal access to justice, we must take responsibility for preserving the record. Working together, interpreters and attorneys can give non-English-speaking clients a voice in the courtroom.
1 See Minn. Stat. §§ 546.42, 546.43, 546.44 for civil proceedings; Minn. Stat. §§ 611.31, 611.32, 611.33 for criminal proceedings.