01 Jul One more reason why the judiciary interpreters code of professional responsibility needs to be revised

The United States District Courts and Circuit Courts of Appeal have said time and again very clearly that Limited English Proficient (LEP) criminal defendants have a right to understand. This is the only reason for interpreters to have a significant place in the U.S. system of justice as officers of the court. For example, the Courts have ruled as follows:

• • • S. ex Rel. Negron v. State of N.Y.[1] – the Second Circuit Court of Appeals held that a defendant who spoke no English, and “s[a]t in total incomprehension as the trial proceeded,” was not sufficiently “present” to satisfy the dictates of the Sixth Amendment.
    • S. v. Cirrincione[2] – the Seventh Circuit Court of Appeals held that due process requires that what is told to defendant is comprehensible.
    • In re Mendoza[3] – the Seventh Circuit Court of Appeals held that “[a] criminal defendant is denied due process when he is unable to understand the proceedings due to a language difficulty.”
    • S. v. Tapia[4] – the Fifth Circuit Court of Appeals held that when an LEP defendant is inhibited from comprehending the proceedings or the testimony given against him in English, such failure makes the trial fundamentally unfair.
    • S. v. Mayans[5] – the Ninth Circuit Court of Appeals held that “[t]he right to an interpreter was deemed crucial to a non-English-speaking defendant’s ability to participate in his own defense, and all rights emanating from this, such as the right to counsel and the right to cross-examine witnesses, would be eviscerated without the defendant’s complete understanding of the case against him.”

Unfortunately, no one has defined what “understanding” means for the LEP and we all assume that by providing words in their native language, understanding will follow. The fact of the matter is that the cognitive functions involved in how we perceive meaning when we hear someone else speak are more complicated than the mere attribution of a specific sense to a specific word.

Cognitive functions are the mental skills we use to reason, acquire knowledge, and manipulate information, so whether an LEP individual understands what the interpreter says is going to depend on that individual’s capacity to perform these cognitive functions.[6] We don’t need to be neuroscientists to surmise that someone with a third-grade education who just arrived in this country from some remote village in Central America is likely to have low-level cognitive functions.

The other requirements to understand what someone else is saying are working memory and attentional resources. As interpreters we have often heard of working memory as it applies to the consecutive mode of interpreting. It is the portion of our short-term memory that holds new information in place so the brain can work with it briefly and connect it with other information we have stored in long-term memory. We know that working memory has a limited capacity, so our LEP listeners must be able to process new information quickly before it is forgotten. Attentional resources combine with working memory so we can select the information that we want to prioritize, focus on, and process while we tune out irrelevant details.[7]

That is the process of understanding from a cognitive perspective. From a philosophical perspective, to understand is to make sense out of something, not merely acknowledge its existence. Knowing something is not the same as understanding something.[8] A speaker and a hearer must have an equivalent reserve of general knowledge into which they can incorporate whatever new information is exchanged before they can understand each other. Whereas the interpreter may have this general knowledge that is shared with the English speaker, there is a very high probability that the LEP will not and, therefore, will be unable to merge any previously isolated yet interconnected bits and pieces of information to form a unified perception of whatever new information is being provided.

Finally, we have semantic understanding. Before we can understand what the dictionary tells us a word means, language theory tells us we need some organized mental structures called schemas, which allow us to interpret and understand the world based on our past experiences. We have schemas for everything we need to understand in our daily lives: people, building structures, animals, vehicles, travel, government, entertainment, etc. When we hear the word “dog” our animal schema is activated and everything we know about dogs that we have stored in our long-term memory becomes available for us to make the necessary connections to whatever new information we are about to receive concerning dogs. Likewise, when we hear the word “sentence” our brain’s attentional resources will discard the irrelevant schema—i.e., grammar—and focus on the legal schema. Everything we know related to legal—i.e., court—sentences will become available for us to incorporate any new information received. But that is not all we need to understand semantic meaning.

Semantic meaning explores the distinction between sense—the ideas and concepts associated with an expression—and reference—the object to which an expression points. If one or the other is lacking, an utterance can be meaningless for the person hearing it. For example, if someone hears the phrase “Empire State Building” but they have never seen or heard anything related to that referent, then that phrase will have no meaning for that person. Words have meaning in context, so we need to have the proper context to know that “bench” means where the judge sits and not where people sit in the park. We need to have the knowledge to infer any implicit information in the source speaker’s discourse, so when we hear “we are recommending a 2-level reduction” we know that the speaker is referring to the sentencing guidelines and that the recommendation is for a reduction in the sentence imposed. And let’s not forget that context can shift, maybe due to new technologies or maybe due to social changes. Now “challenged” has a distinct meaning it did not have just a few decades ago, and “aliens” are now “undocumented non-citizens.”

There are so many factors involved in the process of understanding linguistic meaning, that in the realm of judiciary interpreting it is clearly not as easy as taking the dictionary meaning of words and translating them for the LEPs. When we are transferring the original speaker’s intended meaning to the LEP’s language, our responsibility is to factor in all the cognitive and linguistic considerations that can facilitate or hinder the understanding LEPs are entitled, by law, to receive.

Reference:

[1] U.S. ex Rel. Negron v. State of N.Y., 434 F.2d 386, 388 (2d Cir. 1970).

[2] U.S. v. Cirrincione, 780 F.2d 620, 634 (7th Cir.1985).

[3] In re Mendoza, 755 F.3d 821, 827 (7^th Cir. 2014).

[4] U.S. v. Tapia, 631 F.2d 1207 (5th Cir. 1980).

[5] U.S. v. Mayans, 17 F.3d 1174 (9th Cir. 1994).

[6] See, Wszalek, Joseph. 2017. “Ethical and Legal Concerns Associated with the Comprehension of Legal Language and Concepts.” AJOB Neuroscience, 8:1, 26-36.

[7] Oberauer, Klaus. (2019) “Working Memory and Attention – A Conceptual Analysis and Review.” Journal of Cognition, 2:1, 36-59.

[8] Grimm, Stephen, “Understanding”, The Stanford Encyclopedia of Philosophy (Summer 2021 Edition), Edward N. Zalta (ed.)

Janis Palma has been a federally certified English<>Spanish judiciary interpreter since 1981. She recently obtained her Master in Legal Studies (MLS) degree from Arizona State University and holds an M.A. in literature and history from the Centro de Estudios Avanzados de Puerto Rico y el Caribe. Her experience includes conference work in the private sector and seminar interpreting for the U.S. State Department. She has been a consultant for various higher education institutions, professional associations, and government agencies on judiciary interpreting and translating issues. She worked as an independent contractor for over twenty years in federal, state, and immigration courts around the U.S. before taking a full-time job. Janis joined the U.S. District Courts in Puerto Rico as a staff interpreter in April 2002 and retired in 2017. She now lives in San Antonio, Texas, embracing the joys of being a grandmother. She also enjoys volunteering for her professional associations, has been on the SSTI and TAJIT Boards, and is the past Chair of the NAJIT Board of Directors. Contact: palmajanis88@gmail.com.