09 Mar Interpreter Error? Not This Time
After a career as a systems analyst in the petroleum industry, John Estill found himself working as a translator and interpreter while enjoying retirement in rural Ohio. I’ve had the pleasure of working with John on the Ohio Supreme Court Advisory Committee on Interpreter Services. John chairs the NAJIT Advocacy Committee, whose function is to advocate for NAJIT and for our profession in response to events reported in the press. Today’s post features the committee’s work product. – Kevin
Interpreter Error? Not This Time
A recent posting at Legal Language Services, “Arkansas Court Interpreter Error Leads to New Trial”, called attention to the need for excellence in translation and interpretation. Unfortunately, it also managed to obscure several important aspects of the case in point while misconstruing the measures for excellence.
The posting was based on a story in the Fort Smith, Arkansas Times Record, “Sketchy Translation In Court Enough to Get Man New Trial.” The story, in turn, was based on a decision of the Arkansas Supreme Court in MENDEZ v. STATE, 2011 Ark. 536, Dec. 15, 2011.
The defendant and appellant, Jose Luis Mendez, was accused of several crimes based on the allegation that he had raped and attempted to murder one Irma Guervara. He was interviewed in Spanish by a police detective. The interview was recorded, and was later transcribed and translated by an employee of the prosecutor’s office and, separately, by a translator engaged by the defense.
The defense’s translator was, in fact, an interpreter certified under Arkansas law. The prosecution’s translator was not a certified interpreter; he had attempted the certification test, and had failed it.
At one point during the police interview, the police detective asked, “Did you try and kill her?”. Mendez asked why he would do that. The detective responded, “Grabbing her by the neck?”. According to the prosecution transcription & translation, Mr. Mendez replied, “Yo lo hice” – “I did that”. According to the defense transcription & translation, Mr. Mendez replied, “No lo hice” – “I didn’t do that”.
The trial court admitted both statements, leaving the jury to determine which version to believe. The jury convicted, and Mr. Mendez was sentenced to a total of sixty years imprisonment. Mr. Mendez appealed, and the Supreme Court reversed and remanded, on the grounds that the trial court should only have admitted the transcription & translation prepared by the defense, as only the defense translator was qualified under Arkansas rules of evidence governing translations.
Quality of Interpretation Not At Issue
The Legal Language posting draws this conclusion from the story:
This real story illustrates the importance of obtaining qualified court interpreters and the very serious consequences that may result in using an unqualified court interpreter. Courtroom interpreting can be crucial to the outcome of a court case depending on the experience of the interpreter. Poor interpreting can cause prejudice in the courtroom.
While this is an unexceptionable conclusion – all of us interpreters would no doubt agree that our profession is important to the pursuit of justice – it does not follow from the case presented. Interpretation per se was not at issue in this case; rather, two competing transcriptions & translations were presented to the jury. The Supreme Court found that only one of these had been prepared by a “qualified translator”, and that only that one should have been presented to the jury.
(Arkansas Rule of Evidence 1009 provides that a translation may be presented in evidence on the affidavit of a “qualified translator”, who is later defined to be a person satisfying the requirements of the state’s interpreter certification program.)
Conflicting Translations, Not Error
While the translations in this case were in conflict, neither was held to be in error. The translators were not acting as interpreters. The only error was on the part of the trial court, which erred in admitting a translation performed by a non-qualified translator.
Legal Language later says,
The case in Arkansas turned on a crucial difference in interpretation, and led to a big misunderstanding, and a big loss of time and money.
The difference was indeed crucial, leading to the consequences shown, but it was not a difference in interpretation.
We do not know the source of the discrepancy, as we do not have the recording of the interview available to us. Those of us who prepare transcriptions & translations understand the difficulty there can be in hearing the original utterance, and the difference between a particular word and and its negation may be difficult to hear. The two translators came to opposite conclusions based on their respective perceptions of the utterance.
Is Certification Necessary?
Legal Language goes on to opine:
Is a Certified Interpreter Necessary?
Although there is no nationwide standard for interpreter certification some states require that interpreters be certified in order to perform in court. For example, Arkansas has one level of certificationfor legal interpreters.
There is, of course, a nationwide standard for interpreting in the Federal courts. In addition, the Consortium for Language Access in the Courts provides language certification services for 43 states, including Arkansas. While state court certification is by no means uniform, the trend is toward standardization nationwide.
In the Arkansas case, it was deemed that the uncertified interpreter’s work should have been thrown out and that the only interpretation that was admissible was that of the defense since the interpreter was certified through the state certification program.
However, not all excellent interpreters are certified. Sometimes an interpreter’s experience and familiarity with legal terminology is more important than certification. There are specialized terms, roles and ethics unique to the legal setting that make it vastly different from the community setting. Furthermore, the stakes are very high when statements are not accurately interpreted in the courtroom setting. (Emphasis added)
Not all excellent interpreters are certified? One might as well say that not all excellent attorneys are licensed. Just as licensure is the community’s assurance of excellence in the practice of law, certification is our assurance of excellence in the practice of interpreting in the courts. To be sure, there are still uncertified interpreters practicing, but those who aspire to excellence also aspire to certification. Certified interpreters have passed both written and oral tests to assure their language skills as well as their knowledge of courtroom procedures and language. They are bound to a code of ethics that requires them to honestly evaluate their skills and strive to improve them.
Either way, it is in your best interest to hire a professional interpretersince successful interpreting for court proceedings requires very specific skills and expertise.
With that, we are entirely in agreement.
John M Estill
Chair, NAJIT Advocacy Committee
10 thoughts on “Interpreter Error? Not This Time”
Great communal effort on a timely topic!
Thanks, John. Very clearly stated. I love that bit about “not all excellent interpreters are certified.” If an interpreter is serious about the profession, and wishes to show just how exellent he or she is, the interpreter will do everything necessary to become certified. It sounds to me as though the reporter had heard this idea from someone else–maybe one of those excellent uncertified interpreters?
Thank you, John. As you knw, we are working very hard in South Carolina to address a sortage of certified interpreters. We are concerned that many Judges and Clerks of Court consistently cite this shortage as justification for not providing LEP defendants with an interpreter. The SC Bar Associaiotn, the AOC, the SC Access to Justice Commission’ LEP Workgroup and the SC Association of Interpreters and Translators are scheduling a series of skill-building trianing & ethics workshops to get the many uncertified interpreters on the roster to get certified. We had a successful introductory event: Law School for Interpreters, last month. Today, 38 people are taking the Phase Two written exam. Between now and July, there will be trianingevent and workshops, inJuly we are offering a MOCK TRIAL for Interpreters for those interpreters gearring up to take the oral exam in late August. The Mock Trial is anopportunity to actually interpret and receive feedback from three Federally Certified evaluators. We are on our way, and promoting membership in NAJIT and its standards as standards to follow.
This article make me think of one thing….is there an insurance for errors and omissions for interpreters? I have received several answers and I can not decide whether I should have one or not. I am Certified in Court but I also have a BA in interpretation and sometimes I do worker’s compensations cases. Not very often, but if I can protect myself with some sort of insurance that would be great. Any help would be great.
@Daniela, see http://www.najit.org/join/insurance.php for information on NAJIT’s program.
Awesome job, John! on dispelling misconceptions and educating the public on the difficult job of interpreting for the courts. @ Laura Cahue: It’s great to hear about all the initiatives afoot in SC to address due process issues for LEP individuals.
As president of Legal Language Services, I first want to thank John for his input and comments on our recent blog post.
We have revised the post (at http://www.legallanguage.com/legal-articles/court-interpreter-arkansas/) in light of some of the comments.
In the future, if you or your colleagues have anything to add and/or correct on our blog posts, I invite you to comment directly at our website.
BTW, I personally have been a supporter of NAJIT for some years, as has Legal Language. Keep up the good work.
“A qualified translator (who specializes in written language) handling a recorded tape (oral communication)? This was not an error in translation/interpretation, but clearly a transcription error that automatically impacted the translation. Transcription is a unique skill that has very little to do with translation and even court interpreting itself. I am surprised that NAJIT did not comment on this.
In a recent case out of California it was concluded that California attorneys must show prejudice resulting from the use of an uncertified interpreter, or else it’s harmless error. For details please see: “When Courts Use Non-Certified Court Interpreters in Trials” https://www.languagealliance.com/blog/when-courts-use-non-certified-court-interpreters-in-trials/