27 Dec The Couch – Interpreters need impartiality, but so do judges
The Couch is a place to exchange ideas and brainstorm, not only for its contributors but also for our readers who engage in the ensuing discussions. Interpreter ethics exist to keep the language professional from getting enmeshed into what can become very convoluted situations. But what happens when another party in the courtroom, even a very important one, oversteps professional boundaries? What if it’s the judge? A special thank you to this week’s contributor for the Couch idea.
You are interpreting in family court. The judge is a bilingual family-law attorney who was tapped to fill a vacancy until the next election. As much as she wants to be impartial, this judge’s sympathy for alleged victims always comes to the fore when she is on the bench.
On more than one occasion, the judge, after reading the domestic-violence citation, had asked an alleged victim to give her testimony for the record but had asked her questions, on the record, in the victim’s language. She had also responded to witnesses’ statements immediately in the same language, without giving the interpreter a chance to do their job.
This time is no different, and you yourself decide to go on the record, asking: “would her Honor please allow the interpreter a moment to interpret for the record.” Her reaction is somewhat dismissive, but she nominally acquiesces… and then continues conversing with the victim and the alleged perpetrator in their own language.
Others in the room are starting to look confused or exasperated. What is your next step?
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Body photo by David Mark from Pixabay.
I would probably repeat the initial request. If that fails to resolve the situation, my next step would be to ask for permission approach and then request a sidebar that would also involve counsel for both parties. At that sidebar, I would then — in a respectful way — explain why it is necessary to let the interpreter interpret the proceedings for the record.
Thankfully, I have never encountered such a situation. Though, I hear that in Texas some proceedings are held in Spanish.
I think that your attitude is the right one, Nikolaj.
I have seen situations when an attorney needs to interject the judge’s rhetoric. Most of the time, when that happens, the judge will not change anything but the interjection will be noted for the record. The same thing will probably happen with an interpreter. In my experience, after the interpreter requested permission to interpret, one of the attorneys will interject, and in most cases, the losing party will file an appeal. I also believe that it would be an overreach for the interpreter to presume the judge does not know the importance of interpretation for the record.
This issue strikes at the heart of the democratic system of Government reliant upon an independent and impartial judiciary. The courts provide public access to hearings so that the public have confidence in the legal system. This confidence is undermined if court proceedings are not held in a common language which is usually English with the aid of an interpreter if necessary. My understanding is that the US does not have a policy establishing English as the official language of the courts. That is a fundamental problem. In this case, there are persons present in the courtroom who are excluded by way of the judge’s decision to converse in a language other than English. It appears that the element of unfairness has shifted from the limited English speaking person to those proficient in English only. That is why the interpreter is important in any situation where a language other than English is involved. In Australia, court proceedings are held in English only as it is the official language of Australian courts. So, answering the question of what I would I do next. Typically, I would not let this one go. I would ask the judge for permission to interpret what the judge was saying for the benefit of the English speaking persons present in the courtroom. That way, the record will show whether the request was granted or denied providing evidence for further action if necessary.
“”Your Honor. may the interpreter be dismissed?”
In my early days of court interpreting, when judges and counsels were just educated about the role of the interpreter as an officer of the court, I experienced many of those situations, i.e. judge reading the statue rapidly, judge having a direct conversation with counsel of the plaintiff, the victim or the state. I delivered the best service, under the circumstances, by either being silence, but alert of course, and at the point the judge would realize and ask for interpretation…. I, the interpreter is not the entity in charge of the courtroom, the judge is. Due process is the judge responsibility, That’s why they study juris prudence.
The scenario depicted is not new to many of us that have dealt with bilingual judges. What I have done each time the judge says something in Spanish, in my cases, is to immediately interpret into English to the rest of the court what the judge just said. The judge realizes his mistake and apologizes but other times he will want to keep the dialogue in Spanish. My position is to continue interpreting into English in decallage form (quasi simultaneously) the judge giving me the necessary pauses to develop a rhythmic back and forth that ended well. This may be radical to some but worked well.
Re: IMPARTIALITY. It is not clear to me that the issues here include impartiality in the final decision(s) of the judge.
What is clear is that a judge who speaks to the Limited English Proficient (LEP) party or witness in the LEP’s strongest language is excluding at least some of the participants in the courtroom, Crucially, these may include counsel and the court reporter. These participants, and again, crucially, the officers of the court (counsel) should have a responsibility to speak up and ask the judge, on the record, to please proceed in English.
Having the court interpreter intervene should be the last resort.
All who speak to this issue should do so for the record. That includes any discussion during a bench conference.
Re: TEXAS and other states subject to the terms of the Treaty of Guadalupe Hidalgo.
It is my layperson’s opinion that conducting a proceeding entirely n Spanish in a courtroom where all crucial participants speak Spanish may be protected under the terms of the Treaty of Guadalupe Hidalgo in those US states subject to that treaty.
Re: Any US jurisdiction that is officially (legally) bilingual.
Hawaii has two official languages: Hawaiian and English.
Therefore, a court or other legal proceeding conducted entirely in Hawaiian where all key participants speak Hawaiian, would be legal So far, this has not happened in recent years, if it has happened at all since the US annexation of the Kingdom of Hawaii.
We have also had several legal cases in the last few years where a defendant who is fluent in both languages has requested and been provided with a Hawaiian/English interpreter so that the defendant(s) could speak only Hawaiian in the courtroom.
Re: IMPARTIALLY OF THE JUDGE TOWARD LEPs in the courtroom.
Around 25 or so years ago in a courtroom in California I saw an Spanish-speaking judge give a full, lengthy advisement to the entire courtroom in English.
Then the judge switched to Spanish and gave a truncated advisement to the Spanish speakers. They heard about a quarter of what the English speakers were told.
When one of the defendants needed help going to a particular court office, the judge asked for a volunteer from the courtroom to help, instead of sending for a court interpreter.
I was there as a spectator only.
Seeing this behavior played a role in my decision not to seek work in this specific county’s court system.
There were other factors, as well. I had been told by a well-informed source that a) all the work in the misdemeanor courts in this county was being done by four bilinguals who lacked any certification, and b) that I should not attempt to observe court proceedings there without first getting permission from this group of four.
This was before a ten-part article in the San Jose Mercury News exposed the multiple, serious problems in the provision of court interpreter services in California. The series of articles won a national award and led to reforms in the California court system.
I will write further on this in my next msg.
Re: THE PRESS AS A POSSIBLE REMEDY
A court interpreter witnessing dysfunctional and unfair behavior related to court interpreting issues may choose to recur to the press. Information can be provided anonymously by *an individual*.
Re: PROFESSIONAL ASSOCIATIONS AS A POSSIBLE REMEDY
This is an issue that is better dealt with by a local or national professional association.
Individuals simply put themselves at risk of retaliation.
Re: GOVERNMENTAL BODIES AS POSSIBLE REMEDIES
1. If your state or county has an Office on Language Access that has jurisdiction over the courts, then a report to this Office may help.
2. Acting through a professional association, a bill can be submitted to the legislature banning this practice. Even if the bill does not pass, getting a hearing on it will be an opportunity to provide testimony and educate legislators and others on the issue.
3. The Civil Rights section of the US DOJ may take an interest in this problem.
Start at the lowest step in the governmental ladder, and work your way up, going through your professional association.