24 Oct The Couch: Witness Protection
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. Sometimes, it feels like your code of ethics and your concern for a person’s well-being can conflict. Thank you to this week’s contributor for the Couch idea.
A serious crime has been committed in a small town, and there was one witness. Because it is a small community, the witness is afraid for his or her life if he or she comes forward and prefers to remain anonymous. Precedent allows for witness anonymity in cases such as this one. This witness requires the services of an interpreter.
The time has come for this witness to be examined. The alleged perpetrator is in the courtroom. You interpret for this witness who is testifying remotely; the witness is connecting via audio call only and is using a live voice changer. Other than interpreting an artificially distorted voice from someone connecting remotely to the proceedings, nothing is out of the ordinary for you.
Late in the afternoon that same day, you get a call from a person speaking your non-English language. You quickly realize it was today’s witness (of course, without the voice modulator). The two of you know each other. The witness asks you what kind of influence you have on the attorneys; he/she would like to see the defendant locked up but is afraid to come to anyone but you.
You know that there is a good chance you will be called upon to interpret for the same anonymous witness the very next day, whose identity is no longer a secret for you and who is actually familiar to you. What should you do? Tell the court staff and the attorneys? Tell the witness that given your acquaintance with them and your knowledge of their identity, you can no longer interpret impartially? Will your disclosure compromise the witness’s safety in any way? How should you go about this?
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Body picture “Zeugenschutz bei Verhandlung” by United States Marshals Service at Wikimedia Commons, in the public domain.
I have been in a similar situation – three times – and revealed the possible conflict of interest. In two of them, I was asked if I could still maintain my impartiality and if I felt I could deliver my job as professionally as expected, and I remained on the assignments.
I would reveal the situation. I may not say the witness contacted me directly, but that I came to know the person’s identity and of our relationship.
Tell the judge. Let the judge decide how to handle it. I’ve divulged potential conflicts of interest several times in the past, been asked the same questions as Gio, and I was never removed or asked to recuse myself from the case. Stay professional and be transparent and things *usually* work themselves out.
I have been in the position to have interpreted in the past for acquaintances and have put it on the record. If a colleague was available, we switched, if not, judge would inquire if impartiality was going to be an issue or if the party had an issue. In this particular case, I would have approached the judge with the fact that I was contacted and let the judge convene both counsel if s/he sees fit to do so. High profile cases have to be handled with kid gloves, so as not to expose any identities for the protection of the vulnerable.
I agree with Gio in that I would discretely reveal the situation and add that my impartiality during my interpreting would not be affected, if that is the case.
Good one! Here’s a situation I had not heard of (or encountered) before and I am really looking forward to more reactions from readers. Gio, as always, you lead the way! If I were to find myself in this bind, I would definitely do what Gio said: reveal the potential conflict and either recuse myself if I cannot remain impartial or go forward if the court and all the parties agree and I am SURE I can remain impartial.
Another interesting fact pattern. I must note that the resolution may not be as complicated and tortuous as the author’s portrayal of this interpreter would have us believe. If the interpreter feels, as this fact pattern indicates, that “(he or she) can no longer interpret impartially” then the interpreter MUST TELL the judge in a confidential setting, such as in chambers, of his or knowledge and what had transpired, and REQUESTS that he or she be relieved of further interpreting assignment from this case. It should be so because it is actual conflict. In contrast, a possible or potential conflict is a situation where you know the witness, disclose that knowledge to the judge, and answer truthfully (that is, when asked by the judge) that you feel confident that you could be impartial and that your effectiveness as an interpreter would not affected. To recap: if it’s actual conflict, you decide; if it’s potential conflict, tell the judge and let the judge decides.
As to the concern that “your disclosure” may “compromise the witness’s safety in any way,” this is exactly why you disclose it in a confidential setting, and do it in such a way as not to draw unnecessary attention.
My 4 cents…
Thank you, Gia! This great scenario raises several issues:
(Bear with me, I’ll be using the current gender-neutral form “they”)
1. INTERPRETING FOR A PERSON PERSONALLY KNOWN TO THE INTERPRETER:
As others have commented, this is a potential actual or perceived conflict of interest, so disclosure is absolutely called for.
If the interpreter clearly feels they can’t proceed impartially, or even just dispassionately (i.e. the matter would affect them to a degree under which they can’t reasonably be expected to work), the interpreter self-recuses.
If the interpreter is entirely comfortable with proceeding (and is still qualified to do so under the changed circumstances) and doesn’t feel the need to self-recuse, the judge and attorneys will nevertheless decide, preferably but not necessarily including the interpreter in the discussion, whether to keep or recuse them.
2. CONFIDENTIALITY AND PROTECTION OF WITNESS IDENTITY
Keep in mind that some other parties also already know the identity of the witness – at least whoever issued the subpoena does, be it the prosecution or defense and their investigators. Like the interpreter, they’re bound by a professional duty to maintain confidentiality. The judge, prosecution or defense may not even have had the expectation that the interpreter not know the identity of the witness. The anonymity may have only been intended for members of the public, especially the allegedly offending party and persons affiliated with them.
The primary question is whether the very interpreter, or any of the above parties, are concerned that the interpreter might inadvertently let the identity of the witness slip – either at court or elsewhere. In that case, pre-emptive recusal is better than post-hoc regret.
Even if the interpreter doesn’t doubt their own ability to keep mum, they must disclose their knowledge of the witness’ identity in case there are other reasons why any of the parties would object to their continuing on the case. In my mind, the greater concern is that of the prior relationship between the witness and the interpreter, coupled with the very situation we so commonly encounter in which the witness places greater trust in the interpreter than in the Court or counsel.
Disclosure would not be done “ex parte”, but in a way that includes all parties: the judge, the prosecution and the defense.
The interpreter can ask to approach the judge privately. The judge will usually invite the interpreter into chambers to hear the issue, beginning in broad brush-strokes (e.g. “Your honor, the interpreter has a concern regarding the confidentiality of the witness’ identity and would appreciate your guidance”) .
This would be done without immediately revealing the name of the witness or the circumstances by which the interpreter became aware of the identity. The judge will know how much detail to ask of you on their own, and how to call a meeting of all appropriate parties to further discuss the matter.
3. REQUEST FROM A WITNESS FOR AN INTERPRETER TO INTERVENE…
If the witness’ request that the interpreter intervene is not revealed when the interpreter first asks the judge for guidance, or in a subsequent conversations including all counsel, the interpreter should nevertheless inform the attorneys who subpoenaed the witness of this conversation (unless told not to do so by the judge). Otherwise, the interpreter will continue to hold information that may never come to light. Here, that consists primarily of the witness’ state of mind, but it’s outside the interpreter’s scope to weigh its relevance.
Regarding the telephone call itself, things happen quickly and take us by surprise, so we do the best we can when we realize what’s happening. But the best practice is for the interpreter to immediately, kindly but firmly let the witness know that they are not able to have independent conversations with them. The interpreter can urge the witness to approach the attorneys with their concerns and assure them that an interpreter will facilitate those conversations. Click.
4. ACCESS TO PERSONAL CONTACT INFORMATION OF INTERPRETERS BY PARTIES TO A COURT CASE.
Wow. What a shock it would be to realize that the technologically-altered voice is someone you know. Presumably in this scenario the interpreter was more than a casual acquaintance, which would explain the witness’ possession of contact information.
That said, it’s a good reminder that most people in the community don’t understand the boundaries that we must respect while performing our work.
As a precaution, it’s an important practice to insist on having time with the witness before testimony begins to go over procedures and fundamental guidelines. And insist sometimes we must to get that valuable time.
In that contact, the interpreter can acknowledge that they have no way of knowing who the witness is and that the interpreter wants to preserve that anonymity. The interpreter can then say that in the event the witness discovers that they are acquainted, there must be no contact between them regarding the case other than in a court-related setting (e.g. during a court proceeding or through the office that subpoenaed the witness).
If there is an opportunity, there are many other things that can be communicated at this time, such as that to protect any expectations of confidentiality, any conversations between the witness and the interpreter should, to the degree possible, be in the presence of someone from the office that subpoenaed the witness.
The California Standards of Judicial Administration Section 2;10 (e) is the legal source of good cause for this practice, which is referred to as a “pre-appearance interview” between an interpreter and a party or witness. Using it wisely can forestall many faux pas.
This is 20-20 hindsight, but what is an experience like this for, if not for preparing for future potential pitfalls and sharing what we’ve gained along the journey?
Genevieve N. Franklin
October 25, 2022
You said: “the time has come for the witness to be examined and the perpetrator is in the courtroom”
The question is, is this scenario happening here in the USA? If yes, I don’t understand.
The perpetrator/defendant (it is a serious crime, therefore a criminal procedure, I assume) has the right to confront all witnesses in a court of law, doesn’t he? Unless this is not happening in a court of law and it is a grand jury testimony or a deposition, I don’t understand why the witness’s identity is not revealed.
Thank you!