01 Jul What Would YOU Have Done?
This is the third installment of our new feature What Would YOU Have Done? in which we bring real situations for our readers to comment on. The idea is for us to help each other overcome or prepare for unexpected situations. Drop us a line.
And if you have an experience to share, please write to the Editor. Our work is confidential and all identifiable details are removed from the stories shared with us to maintain our compliance with our Code of Ethics.
Here is a very interesting conundrum. Confidentiality is part of the Canon of Ethics, of course, and the following true situation illustrates how interpreters can find themselves in a very difficult and troubling position:
A State Attorney General walked over to the courthouse and into the Office of Court Interpreters. There she presented a subpoena for one of the staff court interpreters. She said the interpreter had to testify about a conversation he had interpreted between the victim and the person who later became the defendant. The conversation took place in a courthouse hallway. No lawyer was present.
The Office Coordinator informed the interpreter that he had to testify against the defendant before the jury, which he did, honestly telling what he recalled from the conversation.
Note that we did not mention languages. If it had been ASL, would the interpreter have to testify? Do the same parameters apply to spoken languages? Let us know what you think and…
| WHAT WOULD YOU HAVE DONE? |
1. Refuse to testify based on the Code of Ethics and accept the risk of a contempt charge. 2. Refuse to testify without first consulting your lawyer about your rights and responsibilities. 3. Testify. A subpoena is a subpoena. 4. Insist that the two people whose conversation will be revealed give their written consent before you can testify. 5. … |
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Testify but be sure to mention that testifying under duress, under a threat (of a charge of contempt)
This is precisely why my state prohibits court staff and contract interpreters from providing services to anyone (defendants, victims, witnesses, defense attorneys or prosecutors) outside of sanctioned court hearings on the record in front of a judge or as part of a direct court service (clerk’s window). If you as an interpreter are not expressly contracted by the LEP, then you are not covered under agency doctrine and there is no legally protected confidentiality, any more than if you were just conversing with a stranger. Furthermore, confidentiality is not the same as privilege, and is not subject to the same legal protections. Confidential information can be disclosed by court order or subpoena, whereas privileged information typically cannot except under extraordinary circumstances. You must (and should) disclose confidential information by order of a court. The only way for an interpreter to be protected by privilege is to be expressly contracted by an attorney to assist in communication with their client, or by by the client expressly to communicate with their attorney, neither of which can be possible if you are the court’s interpreter. If you choose to provide non-court-sanctioned services to random LEPs out of the goodness of your heart, you do so at your own legal and professional risk.
Agreed. As a CI I have been asked many times to take part on “ex-parte” meetings between parties and every time I have refused unless, and ONLY unless cleared by the Judge and I WARN THE PARTIES THAT EVERYTHING HEARD AND INTERPRETED CAN AND WILL BE USED LATER IN COURT…it may sound corny but, there you go. Thank God, by following this simple rule, I have never found myself in a situation as such, it sound scary!!!
Sorry for the typos…blame my keyboard, not me…Tks!
Thank you all for your input. I understand what Jason is saying and agree with him on all points. In the NY State Unified Court System, too, interpreters are not supposed to interpret for any party outside of the court without an attorney present. What I did not know is the part about an attorney or a direct client not being allowed to hire and use the services of a NY State contract interpreter for a current case on which she is interpreting in court. ( I have encountered similar bars in federal cases, though.) Would that be because they would not have the privilege protection or for some other reason?
And are the rules the same in every state in the country?
In any case, if I am unsure about an ethical situation like this, I would definitely consult the chief interpreter of the court if not an attorney.
Hi AJ. My original post may have been confusing. Kentucky Certified Court Interpreters who are not Court of Justice staff may certainly contract directly with defendants and/or with their attorneys outside of court, but may not do so while actively working for the KCoJ on any given day (i.e. may not be hired by an attorney in the hallway while currently working on behalf of the Court as a freelancer). They also may not act as the Court’s sworn interpreter on cases in which they have worked privately for any of the parties or witnesses.
Kentucky actually construes this policy quite strictly and prohibits sworn interpreter involvement with defendants, plaintiffs, victims or witnesses EVEN in the presence of an attorney. The reasoning is that the interpreter is an employee or contractor of the Court, not the LEP or the attorney, therefore their conversation is not privileged. We may only assist attorneys in communicating information about hearings, explanation of rights, plea offers, pre-sentencing reports, or anything that is not of an evidentiary nature. Local attorneys are aware of this restriction, and the individual interpreter is responsible for halting the conversation if it veers into prohibited territory. We NEVER interpret between prosecutors and witnesses or victims outside of on-the-record hearings. Attorneys (defense or prosecutors) are expected to secure their own language professional to communicate with LEPs outside of court.
Why was this colleague interpreting outside the presence of an officer of the court (i.e. attorney, probation officer, judge, etc.) in the first place? Interpreters must understand their roles and boundaries once and for all!
That is fundamental, protect yourself and our professionalism. ALWAYS request
the presence of your interlocutor’s attorney.
I would have decline to interpret by saying that I could be call to testify.
There is something weird about this happening. Is it a hypothetical? To begin with both the Attorney General and Interpreter Coordinator’s behavior border on illegality for protecting witness’ and the parties’ rights. I agree with the previous view, there is no confidentiality but not necessarily b/c it’s a government subpoena or the interpreter ethics, but because the interpretation itself took place in hallway, in a public place, thus not protected as confidential communication.
Nevertheless, what would I do? I would first ask whether my interpretation in the hallway was somehow recorded? Is there a transcript? Is there a witness? Or the government only has the testimony of the client and defendant as to what I interpreted? I doubt I could remember what I specifically interpreted in the hall, how long ago? Besides, the client now defendant has 4th, 5th, 6th, Amendment Rights. Whatever she/he said in the hallway without the presence of his attorney, incriminating or not, is protected. Defendant has the right to remain silent. Therefore, I will declare I cannot remember what I interpreted in the hallway. In the future, I would not have anyconversations in the hallway, unless the parties’ attorneys are present.
Thank you, Daniela,
At the time of the hallway conversation, there was no lawyer involved, one party became victim and the other one became defendant. I don’t see any issues. The two parties knew that X is an interpreter and asked for help. There is no rule of confidentiality involved, because the interpreter has no fiduciary obligations to anybody. He can testify without any remorse. As Daniela pointed out, the interpreter can say that he/she does not remember the incident. period. The DA must prove that the interpreter should have remembered.
Although saying that you have no memory of something when you actually do might seem to be a convenient “out” or loophole for the interpreter who has failed to exercise good practices and now finds him or herself in a difficult situation, it is lying. Lying from the witness stand is Perjury. Lying to a government attorney outside of court about what you know of a case might be considered Obstruction of Justice or Making False Statements. Therefore it is not the answer. Remember the witness’s oath: “Do you swear/affirm that you will tell the truth, the whole truth, and nothing but the truth…”?
This topic gives me a whole new reason to consider when lawyers and agency employees ask me to interpret in the hallway for free.
1. “(the AG) said the interpreter had to testify about a conversation he had interpreted between the victim and the person who later became the defendant.”
You are begging for kinks to happen if, as a professional interpreter, you are in a courthouse setting and accept good-guy Greg work. It’s totally implausible the interpreted conversation was about FIFA or a cooking recipe – didn’t any alarms go off in the interpreter’s mind…, unless I am missing something…., right? (think about it.)
2. OK, now with the above out of the way,
a. In a courtroom, always tell the truth – even if it is only you that will ever know that truth. You’ve been served, now let the chips fall where they may & speak the whole truth and nothing but the truth as you know it – the whole enchilada.
b. Next, no harm no foul; there are no conflicts as far as I can see, many of the comments above are perfectly valid. I’ll only add this: BOTH parties, now adversaries, through means of an interpreter, solicited he/she become involved – that he/she know things otherwise not privy to others. Their choice, it’s a free country.
Reality vs. ideal situations
“In a courtroom, always tell the truth!”
“I do not recall” is an admissible answer on the witness stand. Have anybody prove to the contrary!
How many times in court have you heard witnesses lying through their teeth (including police officers)? As an interpreter, I heard it at least on eight occasions and many more times when I worked in law enforcement.
This whole scenario has nothing to do with the Code of Ethics or its rules; maybe for the Attorney General !
I doubt if an interpreter can remember with any degree of certainty what was said during a conversation they were interpreting. My experience from many years of interpreting live events on air at CNN taught me that what I remember were the passages that proved most challenging or were the most fun to interpret or where you surprised yourself at the solution that you came up with or the turn of phrase the speaker used. In a very real sense, my experience is that I wasn’t LISTENING, I was INTERPRETING.
I say that with a very high degree of confidence because I am a journalist as well as an interpreter, and at CNN my work was more as a journalist, so I know well the difference between interpreting and really listening to a speech to report on it. And when I’ve gone back to look at the text of a speech I interpreted, I find fairly important points that I only vaguely remember and very minor points that made a disproportionate impression.
Which means that were I forced to testify what would happen is that at the first question I would explain that I do not believe I have an accurate memory of a conversation that I interpreted. Were I to be forced to answer, I would say this is what my memory says but I do not believe my memory is necessarily accurate.
Dear Jose,
You are so right! A wonderful explanation.
Unfortunately, many interpreters are so embedded in theory, that they skip the facts of real life.
This comment is placed here on behalf of Ana Garza, Certified Interpreter from California. Ana requested our help because of accessibility issues with the captcha which we will need to address.
From Ana:
Before I was court certified, I was a contract interpreter for county social services. I once received a phone call from an attorney wishing to schedule a deposition. She told me it was regarding a lawsuit filed by someone I’d interpreted for in a mental health setting.
I said I didn’t really remember. I interpret for a lot of people, and I make a point of not keeping notes so as to protect the confidentiality of all parties concerned. Beyond that, I didn’t feel comfortable swearing to anything because I hit the mental delete button on large chunks of what I interpret a few minutes after I’m done, even when the encounter seems memorable at the time.
The case I was approached about was memorable. I suspect the one posted here was also memorable. Even so, I think my explanation was honest. The attorney didn’t depose me, and if I were subpoenaed, I would give the same explanation on the stand, answering lots of questions with “I don’t remember,” “I can’t be sure,” etc.
Thank you, Gio, for bringing up this issue. There is clearly a lot of interest in this topic and the surprising range of opinions on confidentiality makes me think that we language interpreters might consider clarifying our position.
As I understand it, ASL interpreters can’t testify about any statement without the consent of the person making the statement. they could lose their certification if they do.
Is it the same for us? That’s something to think about.
The colleague who suggested the post asked the same question exactly for the reason you explained. Apparently thee is something in the works to extend that same type of protection to spoken language interpreters.
When I started interpreting in court I was warned not to interact with anyone outside the presence of an attorney. A colleague told me to ignore that. I never did – more out of fear of the unknown than for any insight on possible problems.
Many issues have been raised here. This is really one area that requires attention.
Someone who apparently knows what they’re talking about (hint-hint) once said, “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.”
However, once you are in this sort of situation, you don’t want to perjure yourself in court either. So, instead of, “I don’t remember; I don’t recall; I have no memory of anything at all,” I guess you could lawyer-up and look into invoking your 5th amendment rights or something. Drastic situations call for drastic solutions. I mean, there must be some kind of case law concerning something similar to this. I don”t know, though. This is kind of a contrived John Grisham-eske scenario that might evolve into de defendant being a double agent working for the plaintif’s attorney in cahoots with the judge, under duress of an alphabet agency, to avert global thermonuclear war. Gotta be careful with these things. Winketty-wink-wink ;