27 Jul Time for a Paradigm Shift: Ethics Interlude

I’d like to share with you an ethical dilemma that has been an ongoing subject of debate among interpreters I know for the last several years. First I’ll set up the situation for you; then I’ll offer you the two extreme opposing points of view. Finally, I’ll tell you what the interpreter in the situation actually did—but what I most want to hear about is what you think you would have done in this situation, and how you would justify that in terms of furthering the ultimate goal of court interpreting.

I would like to make it clear here that this was in a high-pressure, prestigious court setting several years ago. All the participants are highly experienced, highly professional, and excellent at what they do. There is no doubt in my mind that everyone (law enforcement, prosecutor, defense attorneys, the judge, the security personnel, and all the interpreters) did an outstanding job throughout, despite an endlessly unpredictable and challenging situation.

The setup

The case was a large-scale drug-trafficking case in which the defendant was evaluated several times for competency issues and always found competent—narrowly so. It was a lot of drugs and a complicated fact pattern. More importantly, it was a particularly difficult defendant: not dangerous, but angry and vocal and disinclined to respect courtroom decorum; one of those cases in which the defendant’s view of reality simply does not correspond to anyone else’s. He had his own version of how the case had gone down (in which, of course, he was the wronged party), and he was insistent that it be recognized as valid and correct.

There was a lot of yelling between attorney and client; multiple defense attorneys were appointed; extra security called for; and so forth. Due to the impossibility of interpreting the defendant’s speech consecutively (he simply wouldn’t stop for interpreting), some proceedings were interpreted in reverse—giving headsets to the judge, court reporter, and second-chair prosecutor to interpret Spanish to English simultaneously, while the English was interpreted consecutively to Spanish for the defendant. (Both defense attorneys and the lead prosecutor were fluent Spanish speakers.)

After many delays, the defendant was finally found guilty by a jury. A few months later, he was set for sentencing. His attorneys filed a detailed, well-researched, well-written sentencing memorandum; the prosecutor filed an equally excellent response. The judge set aside an entire afternoon for the sentencing. A team of interpreters was sent for the sentencing. The moment for the defendant’s allocution arrived, the interpreters again gave headsets to the judge and court reporter. One interpreter stepped up near the bench to interpret simultaneously using equipment; the other stayed at the podium with the defendant and his attorney to interpret English into Spanish.

As we had expected, the defendant went on at some length (perhaps for ten minutes or so)—not the usual apologetic allocution nor asking the judge to consider his family or lack of criminal record, but the same angry repetition of his version of events that he had given at every hearing over the last eighteen months. When he reached the end and began to repeat himself, the judge stopped him. “That’s enough, Mr. López [not his real name],” the judge said. “This is the same thing you’ve said at every hearing on this case for the last eighteen months and I’ve heard it all before. I don’t want to hear anything more from you. If there is anything else you would like to say, you may tell your attorney and he will tell me.”

The situation

The defendant and his attorney (still at the podium) turned towards each other and the defense attorney asked whether there was more the defendant would like the judge to know. The defendant responded at length that, essentially, he disputed the validity of the entire legal process and felt that he was being sent to prison to keep him quiet; but, never mind, he would be a good martyr and go quietly. At several points, he turned his head toward the judge to direct comments in that direction; he insisted several times that the attorney should convey his words to the judge. The mostly one-sided discussion lasted for over five minutes and was perfectly audible throughout the courtroom. Finally, the defense attorney turned to the judge and said “Mr. López wishes to appeal the conviction and sentence. Co-counsel and I will begin preparing that appeal immediately.” The judge imposed the bottom end of the range that had been recommended for the sentence and advised the defendant of his right to appeal, and the hearing ended.

The ethical dilemma

Should the Spanish>English interpreter have interpreted the defendant’s final rant into English for the judge and for the record?

The argument for “yes”

The primary goal of court interpreting is to ensure that everyone in the courtroom has the same experience they would have had if they all spoke the same language. The judge heard clearly every word the defendant and attorney said; he just didn’t understand because he doesn’t speak Spanish. Although it started as an attorney-client conversation, the communication quickly became an extended allocution. The defendant’s intent was clearly for the judge to know what he was saying.

The argument for “no”

The interpreter is obliged not to reveal the contents of attorney-client communications (except in very narrow circumstances that do not apply here). Despite the volume, the use of a foreign language conveys a certain expectation of privacy. The Spanish>English interpreter was standing next to the judge, so the judge could easily have motioned for the interpreter to interpret (but did not do so).

Questions to consider

• Was it a privileged attorney-client communication? If so, did it remain so throughout, or become something else?
• If the communication began as a privileged communication but became something else, is the interpreter obliged to begin interpreting at any point? What point, and how to begin interpreting mid-rant?
• Do the desires of any of the parties (judge, attorneys, defendant) to hear or be heard (or not) affect the interpreter’s obligation?
• Should the volume at which the communication occurred influence the interpreter’s decision to interpret or not?
• Is the judge’s earlier instruction to the defendant that he not address the judge further a factor in deciding whether to interpret?
• Does it matter at all that the attorney’s final response to the Court was not at all what the defendant had asked him to say?
• Does this situation differ from a spontaneous outburst by the defendant?
• What is the primary goal of the context (court interpreting)? The goal of the situation (the sentencing hearing)? What intermediate goals affect the interpreter’s ethical obligations? Which is most important?
• What options and resources did each interpreter in this situation have? What options and resources did the other participants have, and do the other participants’ actions affect the interpreter’s obligation?

What the interpreter did

The Spanish-to-English interpreter in this situation (the one interpreting the defendant’s allocution for the judge and court reporter) was also in the unique position of having been the only interpreter to be present for nearly all the hearings on the case from start to finish. In any case, the interpreter did not interpret the defendant’s communication with his attorney. At first, she didn’t interpret it because she felt it was a privileged communication. As the defendant continued speaking, she felt at the time that the increased volume and the length of time the communication went on made that decision more and more tenuous; but in all honesty, she was not sure how or when to pick up interpreting, and so didn’t. Although she looked to the judge for guidance (literally looked to him—remember, the S>E interpreter was standing quite close to the judge), but he was looking in the other direction and she understood that body language to be consistent with his earlier instruction that he did not want to hear any further statements from the defendant. Also, having been present many times before, the interpreter knew that communications between attorney and client usually occurred that loudly; the volume alone was not intentional on the part of either, nor a sign that they wanted the judge to hear, etc.

The reason that this is an ongoing subject for debate is that the interpreter has always considered it a very close judgment call that could have gone either way But among esteemed, highly ethical colleagues, when asked what they would do, strong, well-reasoned and ethically sound opinions have been expressed that there is only one possible right decision—but the “only possible right decision” could be either of the two options (interpret or don’t interpret). And, of course, there are other highly respected colleagues who also consider it a close call.

What would you have done? Why? How?  Next time, we’ll explore the “Demand-Control Schema” framework and apply it to this situation.