17 Dec Forty years in the courtroom and I still have questions
I am very passionate about being an interpreter and translator. Some of you may have noticed. I just turned sixty-seven years old and am still spending most of my waking hours volunteering for NAJIT. Since my very early days as a federally certified interpreter, thanks to pioneers like Dena Millman, I learned to “pay it forward,” and thanks to professors like Dagoberto Orrantia, I realized that education was the only way to bring the profession to its true and highest potential. I stand on the shoulders of these NAJIT leaders.
For the past forty years, I have been teaching and preaching the virtues, best practices, and ethical boundaries of a profession I love: interpreting in legal settings and the related translation of legal texts as well as transcribing and translating audio recordings. I have been an avid and eager consumer of as much literature in the field as I could get my hands on. When I started in the profession, I was reading the early works of Guadalupe Valdés on bilingualism and code-switching and other works that few people remember today, like Carlos Astiz’s research linking interpreters’ qualifications to due process for non-English speaking criminal defendants.
In time, we had our own Fundamentals of Court Interpretation, by Dueñas Gonzalez et al – by the way, every profession should have a fundamentals textbook. I thought that was a great sign of our “coming of age,” even though court interpreting was still lacking its own body of either theoretical or empirical research. What we had came mostly from European schools, which were focused on conference interpreting. Still, we benefitted from the work of pioneers like Moser-Mercer, which allowed us to advocate for team interpreting. Then, around the same time that Fundamentals came out, we got that first book based on research about interpreters in United States courts by Berk-Seligson, and truth be told, it did not paint a pretty picture. I remember thinking, when I read the book, “Well, those cannot possibly be federally certified interpreters!”
That was close to thirty years ago. By now I would have hoped to see more advanced degree programs for judiciary interpreters, and more published research. But we’re not there yet, unfortunately. In fact, most practitioners are not keeping up with all the new developments in interpreting studies, like looking at the interpreting event from the sender’s and the receiver’s point of view, not just the sender’s, while also taking into account cultural factors. Lucky for us, we have some pretty great people conducting research right here on the SSTI Board.
In fact, SSTI created its Research Collaborative, a wonderful project that matches practitioners with academics in the field, not only to bridge that gap but also to encourage and further new inquiries and explorations that can be both useful to practitioners and inspiring for other researchers outside the Collaborative. One of the almost magical things that happens with research is that you find things you were not expecting. When you start to do research, you think you’re going in one direction, but whatever you read, or whichever method you use, takes you in a different and unexpected direction, so you end up making amazing discoveries. In my case—I was very fortunate to be selected to join the Research Collaborative—I found the transcripts for the Congressional hearings in 1975 for what later became the Court Interpreters Act.
It could also happen that you end up with even more questions than you had when you started. The questions that started to jump at me were: “Who set the performance standards for court interpreters in the U.S.?” “Who came up with the court interpreters’ code of ethics?” “Why does it seem to be inconsistent with the legislative intent of the Court Interpreters Act?” “…or with the caselaw regarding non-English speakers’ right to understand everything that happens in a proceeding against them?”
I found court decisions like United States v. Cirrincione,780 F.2d 620, 634 (7th Cir.1985), holding that due process requires that what is told to a defendant be comprehensible, and on the other hand, codes of ethics mandate that court interpreters “should express the style or register of speech, the ambiguities and nuances of the speaker, and the level of language that best conveys the original meaning of the source language, even if the LEP participant does not completely understands that level of language.” [Emphasis mine.] That’s from the Iowa Code of Professional Conduct for Court Interpreters and Translators, but it’s implicit in every code of ethics for judiciary interpreters.
These and many other questions began to surface as I read the literature in the field of interpreting studies and wondered about our role, who defined it, on what basis, and if it is still a valid definition or if it is obsolete. The old conduit analogy, for example, has been debunked in the academic literature, but practitioners still bring it up. And I also asked myself, what good is it for LEP defendants to have an interpreter present during a legal proceeding if they still cannot understand? Is it “meaningful language access” to interpret “fully and accurately” whatever judges and lawyers say in their customary high register, regardless of whether the LEP defendants can or cannot understand? I know, there’s always that argument about English speakers not understanding legal language, either. But are you accounting for the cultural, historical, and social differences that go hand in hand with the language differences?
Interpreters in legal settings are taught to look the other way, in a sense, and pay no attention to the intended listener of their renditions. All that matters is the speaker and whatever the source-language message may be. So the question must come up at some point: who is responsible for ensuring that LEPs are not exposed to “the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment”? (US v. Carrion, 1st Cir. 1973, 488 F.2d 12.) If judges and lawyers rely on interpreters to facilitate the LEP’s understanding of proceedings, and interpreters in legal settings, on the other hand, are constrained by ethical injunctions to interpret exactly what is said by all parties, even if the LEP does not understand, how can those two things be compatible with language access laws and the LEP’s Constitutional rights to due process? And how did that end up in an ethical mandate?
Forty years… and still so many questions.
Janis Palma has been a federally certified English<>Spanish judiciary interpreter since 1981. 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 20 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 currently on the NAJIT Board of Directors. Contact: jpalma@najit.org
Main photo by Alan Levine from Pxhere. Body photo by Gerd Altmann from Pixabay.
This is an excellent article, raising very important issue
Thank you, Terri!
Janice, it is always very refreshing and enjoyable to read your article. Thank you for this one you just published. You brought me back many years.
In my opinion, the court should instruct the attorneys that their client or that the defendant is not a lawyer, that the interpreters are bound to interpret in the same register as the source language and insist the attorneys lower their registry. level. The same instruction is applicable in those cases where the defendant is a fluent English speaker.
If that could be accomplished, we would have an “almost perfect interpreter’s world.
Many blessings, health and a Merry Christmas to you, Janice.
That is a great suggestion, Vicente! I am hoping at least a few lawyers and a few judges will read this post. Merry Christmas to you, too.
Food for thought, indeed. I’m familiar with the concept that an interpreter might choose not to duplicate frozen archaic language and instead choose plain language of an appropriate register even when similar archaic language might exist in the target language, and I understand that approach is not beyond the pale. However, here’s my perspective as a federal interpreter with a JD and (newly!) with my own clients whose interests I represent and care a lot about. First, although there are some court interpreters who I might trust to appropriately and accurately modify register, who have a very strong grasp of both interpreting and legal concepts, I can say that the vast majority don’t have it, and I do not want interpreters making those decisions for my clients. It is not uncommon to hear renditions of even commonplace legal concepts, especially ones with counterintuitive names (like licensee vs. invitee in tort law, or a frivolous asylum claim in immigration law – you would never guess what those actually mean based on what they look like, or in the case of frivolous, what you might know from non-immigration court) that reflect a slight or serious misapprehension of the actual meaning of the legal term involved. Heck, even I don’t know enough about the law to always know what attorneys are getting at in some cases, and I spent four years studying it while spending nearly every day in court working as an interpreter. Like most attorneys, the only field of law I’m going to be able to consistently comprehensively understand the arguments of my colleagues in is my own. I would rather an interpreter give a literal and incomprehensible interpretation of a concept (hopefully not the entire hearing!) that I would then clear up, than to attempt and fail at making it more understandable and have my client come out thinking something different than what I advised him or her has transpired.
I feel like our current approach is the safest to set as an ethical principle, and teach to newcomers. At least if interpreters try to match what they are hearing exactly based on equivalents they find in dictionaries and from colleagues and from comparing legal codes (best), they’ll nail it most of the time or get close, if they are diligent, without necessarily needing to thoroughly understand the legal concepts at play. But if they were to try to modify it to make the language plainer, they often won’t, and then I as the client’s attorney would have to deal with the fallout of that. Furthermore, each interpreter they get might take a different approach to this, leaving the LEP with different terms and phrases used to describe the same thing across different hearings. Finally, you’re adding a lot to the responsibilities of the interpreter by saying they are responsible for comprehension. If we DO make this the interpreters’ responsibility, interpreters need proper legal training to be able to handle it.
What you’re pointing to here is a serious problem of access in the justice system, I totally agree with you. I just don’t think it’s up to each individual interpreter to solve it: this is something judges, court administrators, and advocates need to tackle (and are tackling, slowly but surely, in certain jurisdictions). It’s part of my portfolio of interests because I agree it’s important. I just thing it’s an expedient but risky shortcut to that goal to say “let the interpreters figure that out.”
Thank you for that detailed comment, Tamber. Indeed, there are abundant quotes in both law and language journals about judges themselves not understanding legal “jargon” sometimes, although it would be as much of a concern to have a judiciary interpreter unfamiliar with legal terms as it would be to have healthcare interpreters unfamiliar with medical terms. I’m afraid that you cannot interpret what you cannot understand, and “trying to match” what you hear so you “nail it most of the time or get close” is not actually the standard we promulgate as the best practice for judiciary interpreters. I can, therefore, understand your misgivings.
Janis, the longer I work as a court interpreter ( I’ve been at it for 35 years), the more doubts I have too about the interpreter being a mere “conduit”. I have had a number of clients over the years who had brain damage, who were illiterate, who had no formal education whatsoever, or who had lived in the U.S. so long that neither Spanish nor English was their dominant language. Am I truly not supposed to inform the attorney/judge of the difficulties the client has in understanding? Do I keep the level of language I use the same whether the person is a college graduate or someone who dropped out of grade school? This topic deserves.to be researched and discussed at length.
Thank you, Vicki. I am certainly hoping more researchers will look into this. There are so many research questions waiting to be explored!
Very interesting blog post, Janis!
I have a couple of questions.
1. “due process requires that what is told to a defendant be comprehensible” – To me, this burden falls on the English speakers and it is the LEP’s right to say I DON’T UNDERSTAND, so counsel or whomever can reformulate their question.
2. “on the other hand, codes of ethics mandate that court interpreters “should express the style or register of speech, the ambiguities and nuances of the speaker, and the level of language that best conveys the original meaning of the source language, even if the LEP participant does not completely understands that level of language.” – If we convey meaning and the LEP doesn’t understand what is said, they have the right so say I DON’T UNDERSTAND so the EN speaker can reformulate or clarify their statement.
3. “And I also asked myself, what good is it for LEP defendants to have an interpreter present during a legal proceeding if they still cannot understand?” – I disagree with this statement. US culture promotes a person that is their own advocate. As interpreters we make sure all the words in EN are transferred to the LEP’s language, nothing more, nothing less. We are there to make sure the LEP get’s the same information as their EN counterparts. If an LEP does not understand what is said it is their right to say so and ask for clarification.
As interpreters, how do we know if the LEP doesn’t understand? Do we read body language? If so, we are not trained in being experts in body language. Do we ask for understanding? Would this not be their attorney’s or the judge’s role and we would not only not complying with our ethics and standards of practice, but not staying within our role.
To answer your question of “who is responsible for ensuring that LEPs are not exposed to “the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment”? ” – I firmly believe it is NOT our role. Not only because it is against our Ethics and SOP and not within our scope of practice, but because this opens a HUGE door for advocacy based on the interpreter’s common sense. And, as we all know, this is usually not quite common to have.
I think it is the judge’s responsibility or the LEP’s attorney to say “counsel, please ask your questions in layman’s terms”. Also, since we are present in the encounter, the LEP has a voice to say “I do not understand” and ask for clarification or reformulation of the question or statement.
I think your confusion in our role may stem from this “If judges and lawyers rely on interpreters to facilitate the LEP’s understanding of proceedings”… – Yes, we are there to make sure the LEP *receives the information in their language* (this is what they mean by understanding). We are not there to confirm that the information in the LEP’s language was properly processed by the LEP.
My suggestion would be NAJIT educating players in the court system and promoting less legalese in exchanges with LEPs and mandatory classes in cultural competence. Asking interpreters to “make sure the LEP understands” is not what we are supposed to do.
Thank you, Gloria. I purposely asked questions because I wanted to hear/read what other interpreters thought. When I said I “wondered about our role” I did not mean that I was confused. I simply meant that there are certain questions that I believe need answers, the most important one being, “is the judiciary interpreter’s role framed in terms consistent with current knowledge in the field, or is it obsolete?”
If I only knew half of what you already know about court interpreting, in addition to all of your experience, Janis!
One particular reaction to your analysis about making language comprehensible to LEP participants is that truly great improvements have come to several court systems nationwide both at the state and federal levels, at least in my experience and through conversations with colleagues. Granted, I understand that there are still many disadvantages that LEP court participants experience because they are not familiar with the US legal system in the context of American society. However, I have come across people in the legal field who want to make sure that LEP court participants understand as fully as possible what is unfolding in a courtroom that will affect their lives. The research results of the SSTI should be shared with the judiciary so that they know what the effect of their actions is on the LEP population and what they could do to level the playing field for access to justice.
Finally, I would like to see SSTI conduct research on how court interpreters’ brains work using fMRIs. I have already read research results on conference interpreters. I volunteer to be the first guinea pig for that research!
Oh, James, I love your enthusiasm! I will be the number two guinea pig volunteer, right after you. I know there is some progress being made in some parts of the country, which I myself have witnessed, with highly conscientious judges and lawyers using very accessible language. It is, indeed, a breath of fresh air. And if a single judge or a single lawyer reads this blog and makes a change in the way they use legal language to make it more understandable to the LEPs, it will certainly be a huge victory for every interpreter working with that judge or that lawyer in the future.
James, the SSTI board deeply appreciates hearing from our colleagues about what sort of work still needs to be addressed! It would be great to have you on board for future iterations of the SSTI Research Collaborative!
Thank you Janis – for your never-ending curiosity and passion! You raise excellent points!
Thank you, Elle!
Agree. Right to the point.
Thank you, Sonya!
I agree with you 100% Janis. I go above and beyond our code of ethics to make sure the LEP is understanding what’s going on in court. I can feel LEP’s frustrations when they do not understand the interpreter because the interpreter is a machine interpreting for judges and counselors but not for the LEP…..
Thank you, Joaquín!
Janis:
Congratulations on an excellent article that truly makes us come back and consciously reflect on the work we do.
I agree with you, as a judicial interpreter, I many times feel this disconnect between what I am interpreting and the comprehension (or lack of it) I can clearly see happening. And in discussions with other colleagues, and especially with newcomers and when teaching, this is a topic that comes up many times.
Yes, I definitely appreciate the duality (and sometimes apparent contradiction) between due process requiring that what is told to a defendant be comprehensible, and maintaining style and register. But in order to be able to know what to do and make decisions when I am interpreting in a judicial context, my three guiding posts are: I am there for the record, I am there for the language, and I am there so the LEP defendant is receiving the same information an English speaking defendant is receiving.
Of course I am aware that in many cases, due to cultural and social differences, the LEP will not have the same understanding as an English speaking defendant. But, on the other hand, even among English speaking individuals there will be a different level of understanding (or non-understanding.) Thus, the “argument that English speakers not understanding legal English either” is not just an excuse or something to be dismissed lightly. There is no monolithic “English speaking defendant:” they all also have different historical, cultural, educational, mental, and social differences and limitations of their own, and we also have no way of knowing how much they are understanding.
I believe that beyond explaining to the LED what the role of the interpreter is (which is a communication I understand we can insert when introducing ourselves, as it refers to our work –something stating that we are there to say exactly in their language what is said in English, and say in English whatever they say in their language; and maybe adding “if you do not understand me or hear me at some point, please say so, and if you have any questions, ask your lawyer”), there is not much more we can do. This places the LEP defendant in the same position as an English speaking one: they can always say “I did not understand,” “what?,” or something to that effect that will show the speaker that there was no communication (and the interpreter has to pay attention and interpret loud and clear what the LEP said, even if we get a stare from the judge who will think it is us who are saying it and we have to clarify “the interpreter is interpreting the words of the defendant”.) The LEP might not dare say so, but neither does the English speaker. That would be up to the individual.
The “the Kafkaesque spectre of an incomprehensible ritual which may terminate in punishment” is not something that only the LEP is facing. English speakers are also in this same situation. Even us, professional interpreters with years of experience, with high levels of education, with our linguistic expertise, who do our research and need to understand the legal proceeding, sometimes are not even sure of what is being said. So definitely, the interpreter is in no position to be making decisions about what the LEP (or any defendant) is understanding or not; and we have no way of knowing if any “clarification” or “explanation” we gave is correct. And for brevity, I will not go into all the arguments we know about our not being able to provide legal counsel, which is what any kind of explanation beyond what is being said would amount to.
If judges and lawyers are not paying attention to THEIR intended recipient who speaks English, the interpreter cannot go beyond that. The problem does not reside in the interpreter, but on the speaker (and maybe the system -another can of worms.)
Where I do believe we need more guidance, is when we are interpreting in settings where there is no record being taken: situations such as interviews, proffers, investigations, etc. It would seem logical that the circumstances when LEPs are speaking to their attorneys are different from being in court, and the interpreter does need to make sure that there is mutual comprehension. I believe that it is here where research should concentrate and standards be established. (Maybe a position paper from NAJIT with at least basic guidelines would be very useful -wink wink?)
How can we ever know what another person —LEP or otherwise—truly understands? In a particular scenario, it is even conceivable that a person would feign to understand or misunderstand their situation for any number of reasons. We, as interpreters, have no possible way to get into someone’s head and conclude, “ok, this guy gets it.’ And, on the heels of what someone else mentioned above, it is the express duty and obligation of the court and (both) counsel to inform defendants of their constitutional rights in a criminal matter, for instance: their duty, not ours. If we are to maintain neutrality, we cannot concern ourselves with what the LEP court user should understand.
There is another underlying issue here, however. WAY too many assumptions have been made about the LEP community living in the US., when we all know that this community is so diverse & heterogeneous. Often, faulty and mediocre translations are justified and perpetuated because there is this belief that working class mexicanos, salvadoreños, puertorriqueños, hondureños, etc., etc., cannot understand their own language when it is spoken/written well. Often, a few pieces of personal data (e.g. 3rd grade education, grew up in a small town) are cited as justifications to dumb down the Spanish. It is so offensive and disingenuous to size up a farmworker, gardener or a housekeeper on the spot, and attempt to know their entire ken…..and decide what they will or will not understand via some translation/interpretation.
My grandmother never had a job or went to any school in her long life, and yet actively read and wrote letters to her family and friends as an adult, read books, too. She would surprise me with her use of ‘big college Spanish words’ in speech and writing. And this is what all seasoned, would-be and wannabe interpreters/translators must be aware of: while many elements in the LEP community certainly do NOT speak in flowery, scholarly Spanish in their daily lives, it doesn’t mean they will not understand the proper and correct terminologies when used in their given context. In fact, my experience has shown me that the overwhelming majorly gets it, and they appreciate the professional register.
Lest we forget our other, lesser-known ethical duty to be unobtrusive, how offensive would it be if we started speaking jive or Ebonics to African-Americans in the courtroom? What’s the difference here? We cannot discount the role that racism and anti-bilingualism has played in this country. There are veritable reasons why Spanish is not spoken/written correctly in the US by many Chicanos, Latinos and others who translate/interpret in this country. With all this wokeness going around, this is still something that many folks in and out of our professional community do not comprehend.
I totally agree with you José. It angers me so much to assume that LEPs are not proficient in their own language, and that multisyllable words should not be used.
I want to clarify, when I speak about LEP not understanding, I am referring mainly rather to concepts, terminology and confusing legal jargon, which is the style and register of the language used in court.
Dear Heidi and José – you have made a an enourmously rich contribution to this conversation, and that is the whole purpose of my questions. I do want to add one more point for all of you to consider. No judge, to my knowledge, has ever written an opinion about the non-English speakers’ right to “understand proceedings against them exactly like English speakers do.” All the opinions I have read say only that they have a right to understand the proceedings against them. The part about “understanding the same as the English-speakers” was added by someone else who was not any of the judges in any of the cases I have read about non-English-speakers’ right to due process and the right to an interpreter..
Today I was disqualified from the assignment in NJMVC as they deemed that I actually was explaining not translating. Of course they can never prove it, it’s very unfair, I was just trying to make sure that the client understood the questions properly, it was an exam.
Nana, I am so sorry about what happened to you. Unfortunately, we still seem to be very far from estalishing the proper guidelines for the sort of message delivery that is described in the 2012 edition of Fundamentals of Court Interpretation, by Roseann Dueñas González et al.: “…as the requirements of Title VI become more concretely understood by judge and attorneys, judges have begun to require interpreters to ensure subject comprehension. More and more, judges strive to ensure that all litigants clearly understand their rights, duties, and responsibilities under the law. This requirement calls not only for monitoring subject comprehension, but also may mean providing the most accessible term, the paraphrasing of a legal concept, or a brief comprehensible explanation. However, this elaboration does not constitute the adding, deletion, or distortion of the speaker message.” (p. 18) “The advent of the ‘incremental intervention’ model (Avery, 2001) used in healthcare interpreting-which focuses attention on subject comprehension-has also served to promote the importance of subject comprehension as a critical aspect of the legal equivalence model adopted by court interpretation” (see Chapter 32, Section 6).” (p. 15) Exams–as well as interpreter education and training–will continue to adhere to parameters that may not be aligned with current scholarly literature in the field.
Dear Janis, after reading your article as well as all the comments that preceded mine, it seems that one critical factor was not mentioned explicitly: power dynamics. I assume that’s what you were getting at in your statement “But are you accounting for the cultural, historical, and social differences that go hand in hand with the language differences?”. James also alluded to it when he said “there are still many disadvantages that LEP court participants experience because they are not familiar with the US legal system in the context of American society.” But it’s important to identify explicitly: People who come from a background that is socially, economically, educationally, culturally and in any other regard un-empowered cannot be expected to suddenly speak up in open court, surrounded by highly-educated attorneys and a judge, armed bailiffs or marshals, or a jury of not-their-peers waiting to pass judgement on them. The responsibility to make the U.S. judicial system comprehensible and accessible, not only its possible sanctions but also its inalienable rights, rests squarely on the shoulders of the principle actors in that system: judges and attorneys.
I agree with you, Steven. And making the US judicial system comprehensible and accessible not only to LEPs, but to all those involved in it!! It is not only LEPs who come from different deprived and unempowered backgrounds and situations.
True, but so far the caselaw applies to the LEPs and, as interpreters, our concern is the work we are called upon to perform in legal settings. Whatever else happens with other defendants should not be our concern (as interpreters, I’m not saying it should not be our concern as citizens or otherwise), because that could lead to concerns about so many other things that happen in the criminal justice system that are completely outside the boundaries of our work.
Thank you, Jason! That is exactly on point, and something few interpreters consider when they say “LEPs can say they do not understand.”
This blog post and its ensuing conversation have excited me like few have… as always, Janis is asking questions that engender reflection and conversation. How DO we reconcile the disconnect between entrenched best practices and possibly obsolete standards of practice? Why does it feel unsafe to re-examine our codes of ethics, especially when it’s not clear where they came from in the first place? I also wonder if and when it becomes part of our work to perform anti-racism and resist anti-bilingualism in the American courtroom (and maybe that can be the start of another conversation). In any case, this is a rich conversation, one that elevates us all. As much more of a researcher than a practitioner at this stage of my life, I really benefit from the experience and expertise of our NAJIT colleagues. Also, huge appreciation to Janis for the shout-out to SSTI and the SSTI Research Collaborative, which we will be sharing more about in future editions of Proteus as well as at the next NAJIT conference. This project is 100% fueled by research questions generated by practitioners in the field. As our first cohort moves forward in their work, the whole SSTI board is heartened and excited by their discoveries. Happy holidays to all!
Dear Janis,
I am greatly inspired by this blog post, the questions that you lift up and the excellent dialogue ensuing. I believe that it is essential that we as interpreters continue to keep our minds open when examining ethics. I hope we continue to ask difficult questions and have difficult conversations. I also think that it is past time to wonder about who wrote the code of ethics and from what framework. As we evolve as a society, so we must evolve as a profession. We can’t be afraid to wonder about change and what it might mean for or about true justice. Privilege and power play into more realms in our world than we realize, and I also wonder whether upholding certain elements of our codes as they stand, is holding up oppressing systems, rather than working for what is truly a more just world. If indeed, the world of the courtroom is to see that ‘justice is served,’ it is always worth wondering what that means. I am so thrilled to see the engagement between theory and practice here and can’t wait to see what happens next as researchers and practitioners come together to continue to move the fields of interpreting and translation forward.