Some Thoughts on Impartiality and Neutrality

 

Oftentimes, the particulars of a case don’t make themselves known to the interpreter until he or she arrives in the courtroom.  For plea hearing, the court may need the interpreter to interpret general instructions to the gallery. The public defender may need to speak with a client about a possible plea deal or prep them for trial.  Likewise, the prosecutor or advocate may have to speak with the witnesses before any deal can be reached.  These are all pretty routine examples of simple plea hearings involving interpreters. 

In general, thanks to the law of the land and all those responsible for the push toward better language access, the interpreter is provided by the court.  The interpreter is not the defendant’s interpreter. The interpreter is not the prosecution’s interpreter. The interpreter is the court interpreter.   Herein lies the quandary. 

In the ideal textbook example each party has their own interpreter.  Furthermore, the textbook example would imply a conflict of interest if the same interpreter interprets for both parties.  Some states even have case law which requires separate interpreters (I’d venture to guess: due to the partiality and lack of neutrality of unprofessional individuals posing as court interpreters. I often tell folks “If you can’t remain neutral, interpreting is not for you.”)

In some jurisdictions, such as the California state courts, case law specifically prohibits the use of the same interpreter for both defense and prosecution. In some states, however, there is no law or statute governing this matter, and it is up to the interpreter to inform the court of the conflict of interest.  Some jurisdictions have even stricter provisions; the Canon of Ethics devised by the New Jersey Supreme Court Task Force on Interpreter and Translation Services (1985) states that an interpreter who has performed any services for either side prior to the trial shall not act as interpreter during the trial (Canon 5).   The reason for this extreme caution is our adversarial system of justice.  Just as attorneys must disqualify themselves from cases in which they represent or have in the past represented a party who may have some interest in the outcome, interpreters should be equally prudent in avoiding potential conflicts of interest.”

Roseann Dueñas González, Victoria F. Vásquez and Holly Mikkelson, Fundamentals of Court Interpretation, (Durham NC: Carolina Academic Press, 1991) Page Numbers 496-497.

 Too often interpreters get compared to attorneys in proceedings, when in actuality the more accurate comparison would be to court reporter or judge, in regard to neutrality and impartiality.  Attorneys and prosecutors are adversaries, understandably.  Interpreters are there to preserve the record.  Just as a court reporter records everything they hear, so too does the interpreter interpret everything they hear.  You wouldn’t have one court reporter for the defense and another for the prosecution.  For that matter, you wouldn’t have one judge for the defense and another for the prosecution either. So how did it come to pass that an interpreter is considered neutral and impartial, but can’t maintain this neutrality and impartiality if multiple parties on the same case need their services?  Again I’d venture to guess it was due to the partiality and lack of neutrality of unprofessional individuals posing as court interpreters, and the notion that somehow the defendant or witness are the interpreter’s client.

Just like court reporters and judges, folks must understand the interpreter is not on either side. The interpreter is walking the thin line in between, assuring that all that is uttered in the target language is understood in the source and vice versa.  We work to make sure the record is clean and clear.  As our profession continues to grow, folks will get a better understanding of the interpreter’s role in the criminal justice system.  Hard to measure how long it will take while we are going through the struggle, but as a great friend of mine used to say, “we struggle so future interpreters don’t have to.”

Just like memory and vocabulary, neutrality and impartiality are skills to be cultivated; however memory and vocabulary are tested in certification processes.  An interpreter’s neutrality and impartiality are often left for the interpreter to monitor.  Luckily as we work, study and learn with colleagues, and we network with colleagues in professional organizations, and as we strive to be better interpreters we have access to the tools we need to do so.

Please find below some additional relevant literature on this topic with links to the codes:

Canon 2. Impartiality and Conflicts of Interest

Court Interpreters and Translators are to remain impartial and neutral in proceedings where they serve, and must maintain the appearance of impartiality and neutrality, avoiding unnecessary contact with the parties.  Court Interpreters and Translators shall abstain from comment on matters in which they serve.  Any real or potential conflict of interest shall be immediately disclosed to the Court and all parties as soon as the interpreter or translator becomes aware of such conflict of interest.

NAJIT – Code of Ethics and Professional Responsibilities – http://www.najit.org/about/NAJITCodeofEthicsFINAL.pdf

3: Impartiality, Conflicts of Interest, and Remuneration and Gifts

Impartiality. Interpreters shall be impartial and shall refrain from conduct that may give the appearance of bias.  During the course of proceedings, interpreters shall not converse with parties, witnesses, jurors, attorneys, or friends or relatives of any party, except in the discharge of their official functions…

Conflicts of Interest. Interpreters shall disclose any real or perceived conflict of interest, including any prior involvement with the case, parties, witnesses or attorneys, and shall not serve in any matter in which they have a conflict of interest.

Remuneration and Gifts. Court interpreters shall accept remuneration for their services to the court only form the court. Court interpreters shall not accept any gifts, gratuities, or valuable consideration from any litigant, witness, or attorney in a case in which the interpreter is serving the court, provided, however, that when no other court interpreters are available, the court may authorize court interpreters working for the court to provide interpreting services to, and receive compensation for such services from, an attorney in the case. 

Attachment I0.2 – Standards for Performance and Professional Responsibility for Contract Court Interpreters in the Federal Courts – http://www.uscourts.gov/uscourts/FederalCourts/Interpreter/Standards_for_Performance.pdf

7 Comments
  • Gio Lester
    Posted at 14:52h, 09 May Reply

    This section stuck to my mind: “Just like memory and vocabulary, neutrality and impartiality are skills to be cultivated; however memory and vocabulary are tested in certification processes. An interpreter’s neutrality and impartiality are often left for the interpreter to monitor. ”

    I strongly believe in the role of professional associations as a provider of parameters that will help individuals keep themselves and their colleagues in check. Do we know what happens if a court reporter can not remain impartial? Now I am curious.

    • Kevin Mercado
      Posted at 15:26h, 15 May Reply

      Gio, it was an exchange of ours which had me think of the cultivation of these skills, like any other skills.

  • Lola San Sebastian
    Posted at 01:27h, 10 May Reply

    Very precise and well put.

    • Kevin Mercado
      Posted at 15:27h, 15 May Reply

      Thank you Lola, I had great editors.

  • Erin Vinton
    Posted at 17:10h, 12 May Reply

    Excellent post. It’s unfortunate that practicing interpreters (of varying qualifications) need convincing or reminding of this fundamental component of legal interpreting.

    To expand on the your friend’s comment: “we suffer [by continually educating our peers and clients] so that future interpreters don’t have to[, and so that future LEP individuals relying on an interpreter get complete and meaningful access to the justice system].”

    Thanks for contributing to that future!

    • Kevin Mercado
      Posted at 15:36h, 15 May Reply

      Thank you Erin. Oftentimes folks look at certification as the end. I generally tell folks certification is just the ticket in the door. If we settle for just the ticket in the door, we may never make it past the first floor. We need to maintain the desire to self assess, and to accept critique (both constructive and non) so we can continuously improve.

  • Stacy L
    Posted at 19:24h, 31 July Reply

    When an interpreter has a personal relationship with an attorney on the case, they should not accept the assignment due to a real conflict of interest. Correct? Or would the interpreter disclose the relationship to the court and let the court decide?

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