03 Dec About the LEP’s Right to “Hear Everything” in Court
About the LEP’s Right to “Hear Everything” in Court
Janis Palma
The United States Supreme Court building, a symbol of justice and the rule of law
One of the rules of thumb that interpreters often follow in court is the if-then structure, which we should be able to use to make decisions based on Logic. If the English-speaker can hear it, then the non-English speaker has to hear it as well. It is a good principle to uphold when the Limited English Proficient (LEP) is the only defendant before the court. However, in courts where the case loads are exceedingly heavy, judges may group cases that share a common trait, such as the type of crime and type of proceeding. Groups of 10, 14, 20 defendants and even larger than that line up in front of the judge, and they all hear the same script with minor variations tailored to the specific circumstances of each defendant. Sometimes English-speakers and non-English speakers are grouped together, so there will be an interpreter or a team of interpreters for the non-English speakers (I have seen this done with Spanish-speaking defendants only, so I don’t really know if it is done with speakers of other languages). As the judge begins to address each defendant individually during certain portions of the proceeding, I have noticed that some interpreters want to apply the same if-then rule and proceed to interpret whatever the judge is saying to one of the English-speaking defendants in the group, because if the English-speaker can hear it, then the non-English speaker has to hear it as well. But this is a false premise, and I will explain why.
Interpreters should consider each case in the group as a separate case and look at each LEP defendant as if he or she were in court alone, not in a group. This is what the judge is doing, except that we don’t see it from our vantage point. Judges have each case file in front of them and are considering each case individually, separate from one another. No more can the judge conflate the cases than the interpreter can. The obligation imposed by statute and case law on the interpreter is to interpret everything that happens in court as it refers solely to that LEP defendant’s case, not to everything that is unrelated and irrelevant as far as the defendant’s constitutional rights are concerned. The right to hear and understand everything that happens in court is specifically related to a proceeding involving a defendant, where the Fifth, Sixth, and Fourteenth Amendments guarantee that all criminal defendants have a fair trial, are informed of the nature and cause of the accusation against them, have an opportunity to confront the witnesses against them, have the assistance of counsel for their defense and equal protection under the law. The case law in the United States has established the link between constitutional protections and the appointment of an interpreter for an LEP defendant.
Defendants standing in line in a courtroom, awaiting their hearing
The Sixth Amendment to the Constitution guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom during his trial. The right to be present includes the right to understand the testimony of the witnesses. […] We have previously acknowledged that providing an interpreter to an accused who does not understand English is required by the Confrontation Clause.
Garcia v. State, 149 S.W.3d 135, 140-41 (Tex. Crim. App. 2004).
So even when there are other English-speaking defendants in the courtroom being arraigned, or pleading guilty, or coming for an initial appearance together with the non-English speakers in the same group, the interpreter is there for the LEPs as if each one were there alone standing before the judge. That is the judiciary interpreter’s legal obligation. It is not to interpret everything that happens in other cases unrelated to the LEP; it is only to interpret everything that happens in that LEP’s case.
By extending the LEP’s right to hear and understand what is happening in court to unrelated matters “because the English-speaker would hear it” is merely increasing the interpreter’s cognitive load unnecessarily and, consequently, accelerating the onset of mental fatigue and the risk of mistakes. Whenever we have groups of English-speaking and non-English speaking defendants together, we should take advantage of any opportunity to rest whenever there is a case in the group proceeding that does not require an interpreter. An interpreter’s job is hard enough when there is just one defendant in one case. We don’t need to make it any harder by adding on interpreting duties that neither statutes nor case law have ever required of us.
I realize this may not be what many interpreters have been taught, but I would like to know if, given this legal framework, does this practice make more sense to you than interpreting everything said in the courtroom even when it does not pertain to the LEP’s case?
Thank you for reading!
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Janis Palma has been a federally certified English<>Spanish judiciary interpreter since 1981. She recently finished a Ph.D. in Language Studies and a Master in Legal Studies (MLS). She also holds an M.A. in literature and history from the Centro de Estudios Avanzados de Puerto Rico y el Caribe. Thanks to her participation in SSTI’s Research Collaborative, her main focus is now on research and is pursuing a second Ph.D. in Rhetoric, Communication, and Information Design at Clemson University. After working for over 40-some years as both staff and freelance in courts around the country, Janis is now retired-ish, living in San Antonio, Texas, close to her daughter and two of her youngest grandchildren. When she is not volunteering for NAJIT, she likes to get creative, whether it’s painting, making soaps, wiring lamps, or re-finishing a table.
In principle, I agree, Janis. That said, I’ve had that approach backfire when the judge has said to the LEP “You’ve heard me say to everyone before you XYZ, so I won’t repeat myself.” And of course, they hadn’t, because I hadn’t interpreted those interactions precisely on the grounds you cite. It’s been uncomfortable to have to say “From the interpreter, your honor, the LEP did not actually hear those instructions/explanations as this interpreter did not translate them.” If looks from the bench could kill, I wouldn’t be here to suggest caution in proceeding as you suggest.
I agree, Katty. Unfortunately, that does happen. We can avoid those challenging moments by knowing our judges (which I realize is not always possible) or trying to educate them. One of my “goals” when I write these sorts of pieces is to have something in writing interpreters can show a judge that insists on having them interpret everything even when it does not concern the LEP defendant in question. I believe the case law is pretty clear on what an LEP has a right to hear and understand, but we all know every judge reigns supreme in the kingdom of their courtroom.
That’s what I do. I have always done that. Usually there will be 10 defendants, 3 of them Spanish speakers. Because the LEP defendants are wearing headsets, they do hear the interpretation.
Just as I don’t have the mental bandwidth to interpret extraneous information, I don’t have it or time to connect and disconnect receivers.
Hi Emily! If defendants have headsets (which is always the case in federal court) there is no need to take them off. The interpreter simply stops interpreting. What may happen is that they get confused when they don’t hear anything so I inform them that the next defendant speaks English and does not need an interpreter. That is usually enough to forestall any confusion when they hear nothing through their headsets.
Well, yes and no. In theory I agree, simply to preserve an interpreter’s strength and focus, but I’m glad this morning I didn’t follow that rule.
A defendant may learn how to deal with a particular judge by watching–and understanding–how other defendants deal, by learning what upsets a judge (such as hands in the pockets, slouching, chewing gum, leaning against a table, or YEAH or UH-HUH vs YES) or seeing what arguments a judge may or may not accept, so that when the watching LEP defendant’s turn comes, he is better prepared to handle it.
This morning, from the judge’s opening soliloquy, I began interpreting in a very crowded traffic court, every word I heard for the first few cases. All the LEPs had my receivers and were hearing what I was saying. One particular LEP had already told me he was going to plead guilty. While he waited for HIS case to be called, he and all the other LEPs heard me interpret everything everyone was saying. They saw and understood what the non-LEPs were doing or hearing, just as if they themselves spoke English too. Because the LEP who had decided he would plead guilty saw the non-LEP ahead of him get off on the same charges he was accused of, by proving he was working on rectifying the issues of no license, car not registered, no insurance, etc., the LEP was able to better defend himself. He stated he was still waiting on immigration paperwork but that he was in the process of rectifying the situation, and he asked for 60 more days and it was granted. He did not end up with a conviction on his record simply because he was placed on an equal footing with English-speakers, even when his case was not currently center stage.
I can see how a traffic court can lend itself to a different approach and how the LEP can benefit from it. No one knows better than you what is the best strategy in any given situation, particularly when you are dealing with defendant who have no legal representation. Thank you for sharing your experience, Ruby.
This would absolutely not go well in my neck of the woods. Judges here often make reference to topics they had already covered with prior defendants, assuming the current one heard them as well. Aside from those situations, I also personally have countless anecdotes where this approach would have had dire consequences for other reasons, A notable one being a LEP about to plea guilty without a plea agreement and hearing the benefits that the prior defendant was obtaining through their plea agreement with the government and blurting out “Can I get that too??!” The judge accommodated a quick chat, the government accepted the previously offered plea agreement and the LEP was able to “get that too”. If there is concern about fatigue because there will be too much material to interpret, the better approach IMHO would be to have a team interpreter.
Thanks so much for your insight and endless knowledge Janis, and particularly for sharing your thoughts with the rest of us who maybe have not had first hand experience with these cases, abrazos
I agree with Janis and all other readers, as well. Multiple defendant appearances can and do very widely, depending on the Judge’s approach. Flexibility and ability to “turn on a dime” is key in such situations.
Having said that, our traffic courts caseload has doubled or tripled in the past year. I’m here referring mainly to Zoom hearings, where the judge handles each case individually, but at a rapid pace, due to time constraints. All traffic Zoom cases here are done consecutively..
Though the cases themselves are simple (driver’s license, insurance, etc police stops, non-criminal), some of the judges get annoyed if we interpret a long, non-responsive defendant response into the record. Here I am referring to questions such as “Do you have a license?” or “can you show your insurance card on the screen?”, which ideally should be answered only “yes” or “no”. But, oh…our defendants often launch into their entire sojourn with the Secretary of State, TPS status, lack of required documents from VZ or U.S. to get license, etc, which judges are not interested in hearing!
Do y’all just interrupt such a response, to save court time, and say “Conteste sí o no?” I do not do this, but a few colleagues feel pressured to do so.. Some interpreters (to save the court time, since most of us have memorized the court’s “script”) just handle the whole thing themselves, assuming “,judge” and “states attorney” roles, and communicating proposed plea agreements and defendant’s (usual) acceptance of same!
I don’t agree with this approach at all, and still wait forthe judge and states’ attorney to do their jobs, interpreting all questions and answers (responsive or not, unless interrupted by the judge who reminds defendant to just provide a “yes” or “no” response to questions.)
Do you agree? Or do you feel that in high-volume courts with many short individual cases, interpreters can/should take such “shortcuts”, in the interest of judicial efficiency? (I have seen some judges actually change a proposed case disposition, when a defendant is allowed to state his/her non-responsive, complete, and interpreted response).
Your thoughts?
You are absolutely right as far as I am concerned. We are not there to “move things along”, “save the court’s time” or anything other than to provide meaning language access to the LEPs in the courtroom. Unfortunately, there are still way too many judicial officers unfamiliar with the role of the interpreter and expect us to do things completely outside the boundaries of our role. Even though we have been a regular presence in U.S. courtrooms as professionals for at least four decades (I am not counting the time when interpreters in the courtrooms were not necessarily professionally trained or educated), there is still a lot of educational work to do with judges, attorneys and other stakeholders so they can understand (1) what is the interpreter’s role, (2) what is required to carry out the linguistic feats of conveying meaning across languages, and (3) how much of a cognitive load the act of interpreting imposes on an individual (and why mental fatigue sets in, why team interpreting is needed, etc.)