Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation

Charles M. Grabau^*

Llewellyn Joseph Gibbons^**

Injustice is doubtless being done from time to time in communities thronged with [linguistic minorities], through failure of the judges to insist on a supply of competent interpreters. The subject is one upon which the profession are in general too callous, for no situation is more full of anguish than that of an innocent accused who cannot understand what is being testified against him [or her].⁽¹⁾

  Introduction

The trial judge has the duty to supervise and conduct judicial proceedings so as to afford all parties a fair and impartial trial to the end that justice may be served.⁽²⁾ Courts⁽³⁾ and scholarly commentators⁽⁴⁾ recognize that inadequate or improper court interpretation creates problems of constitutional dimensions.⁽⁵⁾ Moreover, the court interpreter is an impartial officer of the court directly under the control and supervision of

the trial judge.⁽⁶⁾ Therefore, the trial judge has an obligation to ensure that the interpreter performs his or her duties accurately, fairly, impartially, and ethically.⁽⁷⁾

[A] judge ordered the impanelment to proceed despite objections of the defense attorney:

Defense Counsel:Your Honor, I can't even converse with my client until the interpreter arrives.

A.D.A.:Judge, can we have a bench conference?

The Court:Do I understand from what you are saying that you are refusing to go ahead with this trial until the interpreter is here? Is that what you are saying?

Defense Counsel:That's correct.

The Court:We will proceed further without your participation in this trial.⁽⁸⁾

Often some parties are denied a fair and impartial trial because judges, like the judge in the above example, are either insensitive to the necessity of a qualified court interpreter to protect the rights of a non-English speaker--a linguistic minority⁽⁹⁾--or act as if they have no control over the interpreter, and consequently over the proceeding. This situation arises because the judge is unprepared to deal with an unqualified court interpreter or an interpretation problem that arises during a proceeding.⁽¹⁰⁾ Judges who are unfamiliar with the responsibilities of a court interpreter often accept interpreting services of any bilingual individual assigned to his or her trial session⁽¹¹⁾ or of any helpful spectator in the courtroom without knowing his or her qualifications.⁽¹²⁾ Judges frequently must rely on individuals who have received little or no training in the skills needed to be a qualified court interpreter.⁽¹³⁾ These individuals are neither trained in the proper role of a court interpreter nor do they have any knowledge of the Model Code of Professional Responsibility for Interpreters in the Judiciary⁽¹⁴⁾ or of the various state codes or rules of professional responsibility for court interpreters.⁽¹⁵⁾ "This extremely important and fundamental issue has been allowed to become a `stepchild' of the justice system: understudied, underfunded, and in terms of its ultimate impact, little understood."⁽¹⁶⁾

While the focus of this article is on the use of court interpreters in a criminal proceeding, the principles discussed and the suggestions made are generally applicable to any civil or administrative proceeding requiring an interpreter.⁽¹⁷⁾ This article will discuss the statutory and constitutional rights of defendants and witnesses to have access to a court interpreter, court interpreter qualifications, ethical issues in court interpreting, and some common problems that frequently occur during judicial proceedings. Throughout the article there are suggestions that will facilitate the proper use of court interpreters. The article concludes with a recommendation for increased awareness by judges, attorneys, and other participants in the legal system of the unique role a professional court interpreter serves in promoting equal access to the courts, and a recommendation that states adopt uniform court interpreter certification programs.

  Background

The lack of qualified, competent, court interpreters is not a recent problem.⁽¹⁸⁾ Nearly thirty-two million people in the United States do not use English as their primary language.⁽¹⁹⁾ Of that number, 43.9% speak English "less than `very well.'"<sup>(20)</sup> "The language barrier is affecting our court system by `increasingly impeding the swift, effective delivery of justice.'"⁽²¹⁾ Defendants who do not speak English present a unique challenge to the judicial system. For example, sometimes a defendant is charged with a crime that is common practice in his or her culture,⁽²²⁾ or concepts fundamental to a common law legal system are incomprehensible.⁽²³⁾ Defendants who are unable to speak "English cannot explain their feelings at sentencing directly to a judge who might equate embarrassment or silence with lack of remorse."⁽²⁴⁾ Moreover, they are unable to take advantage of treatment programs because these programs often are "unable to accommodate non-English speakers."⁽²⁵⁾

In 1991, the federal courts required interpreters to be present in more than 68,000 proceedings.⁽²⁶⁾ The shortage of certified court interpreters is very acute. Only sixty staff interpreters are assigned to the "federal courts, and 430 certified free-lance interpreters."⁽²⁷⁾ "Nearly [forty] percent of New York City's population speaks a language other than English."⁽²⁸⁾ In 1992, in the Eastern District of New York alone, "there were a total of 3,019 in-court and 554 out-of-court recorded events requiring interpreters in all languages."⁽²⁹⁾ "The quality of court interpretation is no better in the state courts. For example, there were 49,094 interpreted events in New Jersey Superior Court in 1992.⁽³⁰⁾ The New Jersey Administrative Office of the Courts estimated that the New Jersey courts experienced a seventy-six percent increase in cases requiring court interpretation between 1983 and 1992.⁽³¹⁾ New York State courts use interpreters on an average of 250 times per day.⁽³²⁾ In 1989, courts in Dade County, Florida, used court interpreters in 155,395 proceedings.⁽³³⁾ Finally, in Massachusetts, seven years after the legislature passed a law providing that each non-English speaker is entitled to a court interpreter, the Commission to Study Racial and Ethnic Bias in the Courts stated "`the most pressing need of the court system is to find ways to serve the increasingly large number of people whose primary language is other than English.'"⁽³⁴⁾

These statistics understate the problem. When court interpreters are not available, conversations between counsel and client or between citizen and court personnel take place in pidgin English or the lucky few non-English speakers have relatives, friends, privately-retained interpreters, or bilingual counsel who interpret for them outside the courtroom.⁽³⁵⁾ Furthermore, these statistics do not demonstrate whether the individuals appointed as court interpreters were qualified to interpret in a judicial context, nor do they reflect the delays in scheduling court time because of a lack of a qualified interpreter.⁽³⁶⁾

  The Court Interpreter

The court interpreter plays an important role⁽³⁷⁾ in protecting the rights of a non-English-speaking person.⁽³⁸⁾ A non-English-speaking person is "any principal party in interest or witness participating in a legal proceeding who has limited ability to speak or understand the English language."⁽³⁹⁾ The services of court interpreters should be used to protect the rights of parties in civil cases.⁽⁴⁰⁾ The Model Court Interpreter Act provides that a certified court interpreter should be appointed for a legal proceeding.⁽⁴¹⁾ A legal proceeding is defined as "a civil, criminal, domestic relations, juvenile, traffic or an administrative proceeding in which a non-English speaking person is a principal party in interest or a witness."⁽⁴²⁾

A court interpreter is a "language mediator"⁽⁴³⁾ or "language conduit"⁽⁴⁴⁾ whose presence and participation allow an individual who does not speak or understand English to meaningfully participate in the judicial proceeding.⁽⁴⁵⁾ An interpreter conveys the meaning of a word or a group of words from a source language (e.g., Spanish) into the target language (e.g., English).⁽⁴⁶⁾ "The proper role of the interpreter is to place the non-English-speaker, as closely as is linguistically possible, in the same situation as the English speaker in a legal setting."⁽⁴⁷⁾ "In doing so the interpreter does not give any advantage or disadvantage to the non-English-speaking witness or defendant."⁽⁴⁸⁾ Therefore, an interpreter is not allowed to improve, edit, omit, add meaning or context to the word or words spoken.⁽⁴⁹⁾ Colloquial expressions, obscene or crude language, slang, and cultured or scholarly language have to be conveyed in accordance with the usage of the speaker.⁽⁵⁰⁾ When dealing with terms that may have no literal interpretation (e.g., a vulgar insult), the interpreter may "provide an equally offensive term in English . . . a literal rendition of the original; or . . . repeat the original . . . word, and allow the attorneys to ask the witness what the word means to the witness."⁽⁵¹⁾ The court interpreter is required to maintain the same register, or level of language spoken, and the same style as that of the speaker.⁽⁵²⁾ A court interpreter is not to tone down, improve, or edit any statements.⁽⁵³⁾ A court interpreter must always remember that "[t]he true message is often in how something is said rather than what is said; therefore, the style of a message is as important as its content."⁽⁵⁴⁾ To quote a cliché, in court interpretation often "the medium is the message." Thus, an "[i]nterpreter should convey the emotional emphasis of the speaker without reenacting or mimicking the speaker's emotions, or dramatic gestures."⁽⁵⁵⁾

A.  Proceedings, Witness, and Defense, or Interview, Interpreters

Some jurisdictions recognize that interpreters perform three separate functions: proceedings interpreting, witness interpreting, and interview or defense interpreting.⁽⁵⁶⁾

A proceedings interpreter interprets for a defendant in a simultaneous mode.⁽⁵⁷⁾ The proceeding interpreter will usually sit at the defendant's side during the proceeding. Proceeding interpreting allows the defendant to be linguistically and cognitively present during the proceeding.⁽⁵⁸⁾

A witness interpreter assists the non-English-speaking witness in testifying before the judge or jury.⁽⁵⁹⁾ This interpreter function is sometimes called "record interpreting," because it permits the witness, judge, attorney or defendant to communicate during the proceeding,⁽⁶⁰⁾ so that the non-English testimony can be preserved "on the record" in English.⁽⁶¹⁾ Witness interpreting is usually in the consecutive mode.⁽⁶²⁾ A leading expert in this field, Professor Holly Mikkelson, prefers a combination of the two modes: English questions interpreted simultaneously for the witness into his or her language and the witness's answers interpreted consecutively back into English for the entire courtroom audience.⁽⁶³⁾

An interview interpreter assists an attorney in communicating with his or her client immediately before, during, or immediately after a proceeding.⁽⁶⁴⁾ In a criminal case, this function is sometimes called "defense interpreting."⁽⁶⁵⁾ The interview, or defense, interpreter enables the attorney to communicate with his or her client at the courthouse. Defense interpreting does not include lengthy communications between the defendant and the attorney.⁽⁶⁶⁾ This interpreter function does not include the interpreting done in an attorney's office.⁽⁶⁷⁾

B.  The Translator

A translator uses different skills than a court interpreter.⁽⁶⁸⁾ A translator translates a written document or audiotape recording from one language into a written document in another language.⁽⁶⁹⁾ The translated document or transcript may be treated as substantive evidence during a proceeding⁽⁷⁰⁾ and, therefore, must "convey the same impression to the reader [or listener] as the original source language text would."⁽⁷¹⁾ Court interpreters are sometimes asked to translate documents⁽⁷²⁾ in court proceedings.⁽⁷³⁾ The court interpreter will read the writing or listen to the audiotape and orally translate the document.⁽⁷⁴⁾ This translation is referred to as a "sight translation"⁽⁷⁵⁾ or a "sight interpretation."⁽⁷⁶⁾

The general rule is that the admission into evidence of a translation of a document⁽⁷⁷⁾ is within the discretion of the trial judge.⁽⁷⁸⁾ The exercise of judicial discretion presumes that the original document is authentic, accurate and trustworthy.⁽⁷⁹⁾ An audiotape recording "must be audible and sufficiently comprehensible for the jury to consider the contents."⁽⁸⁰⁾ A judge should be aware of three major types of errors that can occur in a translated document or audiotape: attribution errors, misinterpretation errors, and coding and decoding errors.⁽⁸¹⁾ "`Attribution' errors [are] committed when the translator attribute[s] a conversation to a person who was not a participant in that conversation."<sup>(82)</sup> "`[M]isinterpretation' [errors] involve[] the failure of the translator to translate properly the meaning of what was stated."⁽⁸³⁾ "[D]ecoding errors [are] committed when . . . translators fail[] to decode and translate coded words accurately."⁽⁸⁴⁾

Before deciding whether to admit a translation into evidence, a judge should inquire whether the parties are able to stipulate to the authenticity of the source document or audiotape recording in the language other than English and to the accuracy and fairness of the translation.⁽⁸⁵⁾ If one party objects to the translation or to a portion of the translation, that party may submit a motion in limine to request a ruling on its admissibility.⁽⁸⁶⁾ The court should rule on the motion after a full hearing but prior to trial.⁽⁸⁷⁾ The court may appoint an independent certified translator to serve as the court's expert.⁽⁸⁸⁾

There may be situations, however, where the parties contest the meaning or translation of certain words or passages in a language other than English.⁽⁸⁹⁾ This may become an issue of fact rather than one of law.⁽⁹⁰⁾ For example, if a letter written in a language other than English is offered into evidence and is susceptible to two meanings or translations, the trier of fact will have to determine what the author intended by the letter.⁽⁹¹⁾ The jury will receive both translations of the disputed passages and hear testimony from the translators as to their qualifications and as to the basis of their opinions.⁽⁹²⁾ In the case of audiotaped conversations, the jury may listen to the audiotape to hear the nuances, inflections, hesitation, mood or tone.⁽⁹³⁾ "[T]he jury becomes the final arbiter of which version is [the] most accurate" reflection of the speaker.⁽⁹⁴⁾

Some courts have treated the translations of audiotape recordings of conversations in a language other than English as aids for the jury and the non-English language audiotapes as the primary evidence.⁽⁹⁵⁾ The translated transcript is considered a visual aid for the jurors while the audiotape recording is being played.⁽⁹⁶⁾ This approach makes little sense when the audiotape recording is in a language other than English.⁽⁹⁷⁾ Other courts have held that the purpose of the transcript is to assist the trier of fact in understanding the foreign language spoken on the audiotape.⁽⁹⁸⁾ Presumably, the judge and the jurors are not able to understand an audiotape in the non-English language.⁽⁹⁹⁾ Furthermore, there is potential danger that bilingual jurors will disagree as to the meaning of the conversation.⁽¹⁰⁰⁾ The better line of cases holds that the translations and not the audiotapes in the non-English language are the best evidence.⁽¹⁰¹⁾

Frequently, an audiotape offered into evidence may reflect the rich bilingual culture of many communities. Portions of the recorded conversation will be in the foreign language, portions in English, and some portions a linguistic potpourri of multiple languages.⁽¹⁰²⁾ This raises interesting evidentiary questions in the context of court translations. The audiotape is the best evidence for those portions which are clearly in English.⁽¹⁰³⁾ However, the transcript reflecting the translation is the best evidence for those portions which are in another language.⁽¹⁰⁴⁾ For those portions which reflect a "linguistic potpourri," the judge should instruct the jury that for those portions of the tape which it finds are in English, the jury may disregard the transcript, if it finds that the transcript is inconsistent with the jury's understanding of the audiotape because the audiotape is evidence and the transcript is merely an aid. But, if the jury finds that the speakers are not speaking English, the transcript of the translation is evidence.⁽¹⁰⁵⁾ In deciding how to instruct the jury, the judge must be careful not to remove fact questions from the jury.

If an attorney fails to object to an alleged inaccurate translation, or fails to submit an alternative translation, fails to request a jury instruction,⁽¹⁰⁶⁾ or does not move the court for an opportunity to voir dire the translator as to his or her qualifications, the attorney has waived the right to contest any inaccuracies on appeal.⁽¹⁰⁷⁾

In another context, accurate translations of court documents such as the indictment, applicable statutory provisions, plea agreement and pre-sentence report for a defendant who is not fluent in English, provide due process protection for the accused.⁽¹⁰⁸⁾ "A criminal defendant cannot aid in his own defense without meaningful access to relevant documents he or she can understand."⁽¹⁰⁹⁾ Some courts have begun to translate frequently-used documents into languages other than English.⁽¹¹⁰⁾

C.  Qualifications

Generally, there are no formal "qualifications" per se to be a court interpreter,⁽¹¹¹⁾ except in those few jurisdictions that have established certification programs for court interpreters.⁽¹¹²⁾ For example, only six states--California, New Jersey, Washington, New Mexico, New York and Massachusetts--have formal training or certification programs for court interpreters,⁽¹¹³⁾ and the federal courts only certify interpreters in Spanish, Haitian Creole and Navajo.⁽¹¹⁴⁾ Some court interpreters develop the requisite skills and knowledge through formal educational training,⁽¹¹⁵⁾ while others develop such skills through life experience.⁽¹¹⁶⁾ Although the law is unclear as to which qualifications a court interpreter must possess,⁽¹¹⁷⁾ a defendant has the right to an interpreter who is "competent to render accurate translations."⁽¹¹⁸⁾ At a bare minimum, a court interpreter should be able to (1) understand "the terms used in court proceedings"; (2) "explain these terms in the English language and the foreign language which will be used"; (3) "interpret these terms into the foreign language being used";⁽¹¹⁹⁾ and (4) be disinterested in the proceedings.⁽¹²⁰⁾ Because interpreter qualifications are not readily reducible to broad, brightline rules, a trial judge has broad discretion in determining the qualifications of a court interpreter.⁽¹²¹⁾

Granting judges such broad discretion is problematic because it presumes that a judge is able to determine who is a qualified interpreter.⁽¹²²⁾ Even if a judge is bilingual, it is unlikely that the judge has an independent basis to determine the proposed interpreter's linguistic competency.⁽¹²³⁾ Nevertheless, if a judge is able to determine linguistic competency, court interpretation still requires more than mere bilin-gualism.⁽¹²⁴⁾

"[B]ilingualism, or fluency in two languages, is only the starting point" for interpreters.⁽¹²⁵⁾ An interpreter must be able to correctly interpret 120 to 180 words per minute.⁽¹²⁶⁾ The interpreter must do this in a manner that is "accurate, unbiased, comprehensive, and true to the speaker's style, level of usage, and perceived intent."⁽¹²⁷⁾ The interpreter must command a "high level [of] cross-cultural awareness and sophisticated skills, including the ability to manipulate dialect and geographic variation, different educational levels and registers, specialized vocabulary, and a wide range of untranslatable words and expressions."⁽¹²⁸⁾ Once the interpreter has mastered both languages, he or she must also master the legal process and two "legal language[s] which [are] acutely context specific and fraught with redundancies, archaisms, and intentional ambiguities" and the legal systems of countries where the languages are spoken.⁽¹²⁹⁾ After the interpreter has mastered both language and law, he or she stills needs the interpersonal skills to work effectively with judges, lawyers, defendants, and witnesses.⁽¹³⁰⁾ The interpreter must work with individuals under extremely stressful circumstances. Clearly, these skills are not readily susceptible to evaluation during a brief voir dire even if it is conducted by a bilingual judge.

In order to ensure that only qualified individuals serve as court interpreters, many jurisdictions distinguish between a certified interpreter and a non-certified interpreter.⁽¹³¹⁾ A "certified" interpreter is an individual who has passed a valid and reliable oral and written examination, such as the federal court interpreters examination,⁽¹³²⁾ an examination administered by a state court,⁽¹³³⁾ or the United States State Department.⁽¹³⁴⁾ Regardless of whether the interpreter is "certified" or "qualified," the interpreter should be held to the same ethical standards.⁽¹³⁵⁾

Judges should be careful in appointing individuals who are certified by governmental or international agencies other than the judiciary.⁽¹³⁶⁾

[Court interpretation] requires skills that few bilingual individuals possess, including language instructors. The knowledge and skills of a court interpreter differ substantially from or exceed those required in other interpretation settings, including social service, medical, diplomatic, and conference interpreting. Interpreters who routinely work non-court settings often cannot perform adequately as a court interpreter.⁽¹³⁷⁾

If the interpreter is incompetent, the judge is likely to be presented with evidentiary problems.⁽¹³⁸⁾ The federal courts review a claim of inadequate interpretation to determine whether the interpretation "`made the trial fundamentally unfair.'"⁽¹³⁹⁾ State courts use a similar standard: whether "the testimony as presented through the interpreter [was] understandable, comprehensible, and intelligible, and if not, whether such deficiency resulted in the denial of the defendant's constitutional rights[.]"⁽¹⁴⁰⁾

D.  Constitutional and Statutory Rights to an Interpreter

The failure to appoint an interpreter or the appointment of an unqualified court interpreter can have a profound effect on the rights of the parties in a civil case,⁽¹⁴¹⁾ a victim⁽¹⁴²⁾ or defendant⁽¹⁴³⁾ in a criminal case, or a witness in any legal proceeding.

1.  Civil Proceedings

A non-English speaker's constitutional right to an interpreter in a civil proceeding is unclear. Numerous legal commentators and several courts have cited Jara v. Municipal Court,⁽¹⁴⁴⁾ as clearly establishing that there is no constitutional due process right to a court interpreter in a civil proceeding.⁽¹⁴⁵⁾ Even if one accepts the premise that there is no due process right to a court-appointed interpreter for a civil litigant, there may be a First Amendment right to an interpreter in a civil action.⁽¹⁴⁶⁾ Some states have statutes which provide for the appointment of an interpreter in a civil action.⁽¹⁴⁷⁾

2.  Criminal Actions

In a criminal case, the Sixth Amendment right to confront witnesses is meaningless if the defendant cannot understand their testimony.⁽¹⁴⁸⁾ In a criminal case, a judge may violate a person's Sixth Amendment right of confrontation by failing to appoint a court interpreter.⁽¹⁴⁹⁾ The right to confrontation includes the right to cross-examination⁽¹⁵⁰⁾ and the right to the effective assistance of counsel.⁽¹⁵¹⁾ The right of cross-examination, which is included in the right of confrontation, is seriously affected if the accused cannot understand the evidence or the witnesses.⁽¹⁵²⁾ The individual's inability to communicate in English can affect the ability of the attorney to conduct a meaningful pre-trial investigation.⁽¹⁵³⁾ "The test for both confrontation and effective assistance cases in this context is the same: was the defendant hampered by a language problem in any meaningful way in presenting his defense?"⁽¹⁵⁴⁾

Defense counsel loses a valuable resource if his or her client cannot understand the charge and supporting facts. Significance of detailed factual representations may escape the lawyer, but not the client who is familiar with the circumstances surrounding his [or her] case. Ultimate success in court may depend on careful pre-trial investigation based on hints from the client. Inadequate input from the client who has failed to understand the evidence to be relied upon by the government cannot be cured by the presence of an official court interpreter at a hearing or at trial.⁽¹⁵⁵⁾

E. The Appointment of an Interpreter

Frequently, a judge learns that an individual needs⁽¹⁵⁶⁾ an interpreter from court personnel, the session clerk or perhaps a probation officer.⁽¹⁵⁷⁾ Attorneys often alert judges of the need to appoint a court interpreter.⁽¹⁵⁸⁾ Generally, judges have little incentive to appoint court interpreters because the presence of the interpreter lengthens the trial,⁽¹⁵⁹⁾ and some judges are reluctant to authorize payment for interpreters.⁽¹⁶⁰⁾ Some judges are insensitive to the needs of linguistic minorities,⁽¹⁶¹⁾ and trial judges are rarely reversed for failing to appoint a court interpreter.⁽¹⁶²⁾ Failing to appoint a qualified interpreter or the inappropriate use of an interpreter, however, may subject the proceedings to direct or collateral attack under state law or federal law.⁽¹⁶³⁾

A judge may exercise discretion in deciding if the interpreter is necessary to interpret in the proceeding.⁽¹⁶⁴⁾

When evaluating a determination as to the necessity of appointing an interpreter, the policy of upholding a lower court's decision based upon informed discretion is strong. The trial judge is in a unique position to evaluate the reactions and responses of the accused and to determine whether he or she does or does not require an interpreter in order to be adequately understood or in order to adequately understand the proceedings. This exercise of discretion should not be reversed unless there is a complete lack of any evidence in the record that the accused does not understand English, thereby rendering the decision totally arbitrary.⁽¹⁶⁵⁾

This discretion does not extend, however, to whether a defendant has a legal right to an interpreter.⁽¹⁶⁶⁾ A judge, when exercising his or her discretion in deciding whether to appoint an interpreter, must ascertain how fluent the individual is in the English language.⁽¹⁶⁷⁾ The judge should conduct a colloquy with the witness or defendant. An attorney's assurance that there is no "language problem" is not sufficient.⁽¹⁶⁸⁾ The reasons for a judge's discretion on this matter are as follows:

Full comprehension is critical in any legal proceeding, and perhaps even more so in a criminal matter where fundamental liberty interests are at stake. It therefore would be neither unreasonable nor an attempt at fabrication for an individual for whom English is a second language to utilize an interpreter at trial to ensure that the questions and responses are fully understood, even though he or she would not do so for ordinary conversational purposes.⁽¹⁶⁹⁾

The inability to communicate can adversely affect a party in a civil case or a defendant in a criminal case if a judge or jury must make credibility findings.⁽¹⁷⁰⁾ If the individual decides to testify and is unable to speak or understand English well, he or she runs the risk of not understanding a question or of being misunderstood by the trier of fact.⁽¹⁷¹⁾ Unfortunately, often trial judges do not consider the level of English that is typically spoken in a courtroom when deciding whether to appoint an interpreter.⁽¹⁷²⁾ In addition, a judge must make credibility findings on the record as to whether an individual needs an interpreter.⁽¹⁷³⁾

One expert in the field of applied linguistics, Dr. Roseann Dueñas González, found "that the language of the law was not common everyday English and that it was something unto itself."⁽¹⁷⁴⁾ The English spoken in court requires the "competence of understanding language, intellectual understanding of the fourteenth grade level . . . [that of] a sophomore in college . . . ."⁽¹⁷⁵⁾ Therefore, a knowledge of conversational English is not an accurate test of whether an individual will be able to understand and testify in English and meaningfully participate in the proceeding.⁽¹⁷⁶⁾

A judge should conduct a brief voir dire of the individual needing the interpreter outside the presence of the jury.⁽¹⁷⁷⁾ A judge should not ask the individual if he or she speaks English,⁽¹⁷⁸⁾ nor should a judge ask the court interpreter if the individual speaks English.⁽¹⁷⁹⁾ A judge should ask the individual where he or she lives, if he or she works and what kind of work he or she does.⁽¹⁸⁰⁾ A judge may also want to ask the individual how long he or she has lived in the United States or in other English-speaking countries.⁽¹⁸¹⁾ Leading questions and questions that result in yes or no answers should be avoided.⁽¹⁸²⁾ A judge should use a rebuttable presumption when evaluating the individual's language proficiency.⁽¹⁸³⁾ That is, a judge should assume that if the court is alerted about a language problem, it is probable that the person needs the assistance of a court interpreter. There are times when a judge may suspect that an individual is hiding behind an alleged language problem; in other words, there in fact is no language barrier. A judge should, however, err on the side of appointing the interpreter rather than risk depriving a person of a meaningful day in court.⁽¹⁸⁴⁾

F.  Interpretation and Attorney-Client Privilege

The attorney-client privilege not only protects attorney-client communication, but it also protects communications with those persons "reasonably necessary for the transmission of the communication."⁽¹⁸⁵⁾ "At least thirty-three states presently have statutes expressly extending privilege to interpreters if the communication is covered by attorney-client privilege."⁽¹⁸⁶⁾ Other states have evidentiary rules or other provisions to protect communication made by a client to an attorney through an interpreter.⁽¹⁸⁷⁾ Even in the absence of a statutory privilege, courts have recognized that the presence of an interpreter does not vitiate the attorney-client privilege.⁽¹⁸⁸⁾ The presence of the interpreter is an exception to the general rule that communications made between a defendant and counsel in the known presence of a third party are not privileged.⁽¹⁸⁹⁾ Courts have recognized this exception because clients have a reasonable expectation that such statements will be used solely for their benefit and will remain confidential.⁽¹⁹⁰⁾ Therefore, communications made to an attorney through an interpreter serving to facilitate communication will be privileged.⁽¹⁹¹⁾ However, the scope of the privilege is not defined by the third party's employment or function.⁽¹⁹²⁾ The privilege depends on whether, under the circumstances, the client had a reasonable expectation of confidentiality.⁽¹⁹³⁾ Accordingly, an attorney may communicate freely with his or her client through an interpreter without jeopardizing the attorney-client privilege.⁽¹⁹⁴⁾

G.  Interpreter Training

A judge cannot be expected to train a court interpreter.⁽¹⁹⁵⁾ The office of court interpreter services should be responsible for the training and certification of court interpreters.⁽¹⁹⁶⁾ A judge, however, should ensure that the proposed court interpreter is aware of the basic principles of court interpretation and key ethical principles in court interpretation.⁽¹⁹⁷⁾ Additionally, consistent with the needs of the court, a judge should support court interpreter continuing education programs and other formal and informal training programs.⁽¹⁹⁸⁾

H.  Waiver of a Court Interpreter

On occasion, the defendant or his or her attorney may express a desire to waive the service of a court interpreter.⁽¹⁹⁹⁾ The right to a court interpreter is a personal right that cannot be waived by an attorney.⁽²⁰⁰⁾ A judge should not accept a waiver of the service of a court interpreter without first conducting a colloquy with the defendant on the record.⁽²⁰¹⁾ A judge must explain, with the assistance of the court interpreter, that the court will appoint a court interpreter at no expense to the defendant; the judge must also explain the nature and effect of the waiver.⁽²⁰²⁾ A judge may not ask the interpreter for his or her opinion as to whether the defendant understands the waiver.⁽²⁰³⁾ The waiver of the court interpreter must be made knowingly, intelligently and voluntarily.⁽²⁰⁴⁾ Upon making a finding that the waiver has been made knowingly, intelligently, and voluntarily, the judge should accept the waiver on the record.⁽²⁰⁵⁾ In addition, the defendant should sign a written waiver as is done when a defendant waives his or her right to a jury trial.⁽²⁰⁶⁾ A judge should allow a defendant to retract the waiver of the court interpreter at any time.⁽²⁰⁷⁾

I.  Disqualification of a Court Interpreter

A court interpreter should disqualify himself or herself if he or she is not linguistically competent to interpret during the proceeding.⁽²⁰⁸⁾ A judge has the authority to disqualify an interpreter at any point in the proceedings.⁽²⁰⁹⁾ A judge should disqualify a court interpreter if the court interpreter is not qualified, is not impartial, has disclosed confidential or privileged information, or cannot effectively work with the defendant or witness for any legitimate reason.⁽²¹⁰⁾ A judge should also disqualify an interpreter if there exists a conflict of interest, or if the interpreter failed to comply with any applicable law or the Model Code of Professional Responsibility for Interpreters in the Judiciary.⁽²¹¹⁾ If an attorney is dissatisfied with the interpreter, the judge should inquire as to the nature of the problem and take remedial measures if necessary.⁽²¹²⁾ "During a trial, both the opposing counsel and the judge should be informed of any difficulties which develop with the court-appointed interpreter."⁽²¹³⁾ Minor errors or general disagreements standing alone are generally insufficient to disqualify an interpreter.⁽²¹⁴⁾ Moreover, neither party unilaterally may substitute or replace a court interpreter without the consent of the presiding judge.⁽²¹⁵⁾

J.  Orienting a Court Interpreter

Preparation is especially important in lengthy, complex civil or criminal cases.⁽²¹⁶⁾ In the event that a court interpreter makes a request to prepare for the hearing or trial, both parties should be notified and cooperate so that only neutral materials are released for the interpreter's trial preparation.⁽²¹⁷⁾ In order to utilize scarce court interpreter resources most effectively, a judge should order the party requiring the court interpreter to notify the office of court interpreter services and the clerk as soon as the party is aware that an interpreter is required.⁽²¹⁸⁾ Such notice gives the court an opportunity to locate an interpreter, and gives the interpreter an opportunity to consult with the party requiring the interpreter and to prepare for the proceedings. Finally, if the assigned interpreter is for some reason unqualified, an alternate can be located in enough time to prevent delaying the proceedings. If a proceeding is rescheduled, the party requiring the interpreter is responsible for notifying the office of court interpreter services and the assigned interpreter that interpretation services are no longer required for that day and that the proceeding has been rescheduled.⁽²¹⁹⁾

1.  Preparation

It is good practice, when possible, to allow the court interpreter to speak to the attorney requesting the interpreter so that the interpreter may orient himself or herself regarding the specific vocabulary to be used during the trial or hearing.⁽²²⁰⁾ The interpreter will be better prepared if he or she knows the nature of the case, the charges or claims being tried and for whom the interpreter is interpreting: a witness, a party in a civil case or a defendant in a criminal case.⁽²²¹⁾ The interpreter may request a photocopy of the charges or complaint, grand jury minutes, deposition transcripts, police reports, medical records, and the like.⁽²²²⁾ A judge should inform the attorney representing the party needing the interpreter services that the court interpreter has requested an examination of the documents. The interpreter may also want to briefly speak to the defendant or witness, with the attorney's permission and in his or her presence, to determine the source language, dialect, idioms and colloquialisms that the defendant or witness may use while testifying.⁽²²³⁾ It is important for the court interpreter to have the opportunity to assess the defendant's or witness's level of education, accent and any other relevant traits, which will be helpful in reproducing testimony later in English.⁽²²⁴⁾

2.  Location and Placement of an Interpreter

The court interpreter must maintain a low profile during the proceedings.⁽²²⁵⁾ To accomplish this, the court interpreter should position himself or herself to provide the interpretation without being conspicuous.⁽²²⁶⁾

The court interpreter is responsible for placing himself or herself so that the interpretation can be performed comfortably.⁽²²⁷⁾ A record interpreter must be able to see and hear and be seen and heard by the court, attorneys, the witness, and the jury.⁽²²⁸⁾ The interpreter must inform the judge if he or she has difficulty hearing due to the noise level in the courtroom.⁽²²⁹⁾ The judge, in turn, has the responsibility to support and assist the interpreter.⁽²³⁰⁾ The judge may ask the attorney or witness to repeat a question⁽²³¹⁾ or answer, or to raise his or her voice, or may order the attorneys to speak one at a time.⁽²³²⁾ The interpreter and judge should work together so that there is minimal disruption in the flow of the testimony.⁽²³³⁾ If the court interpreter is interpreting for a defendant at counsel table (defense interpreting), and the attorney is monolingual, then the court interpreter should be seated between the attorney and the defendant.⁽²³⁴⁾ This seating arrangement will permit the attorney to speak with the defendant with the assistance of the interpreter. A bilingual attorney may prefer to sit next to the defendant and have the interpreter sit on the other side of the defendant. In most cases, the placement of the interpreter, attorney(s), and defendant(s) at the attorneys' table is a matter best left to the individuals involved.⁽²³⁵⁾

3. Equipment

Court interpreting, as are all aspects of modern trial practice, is increasingly using advanced technology. The proper use of technology can reduce the number of court interpreters needed for a multi-defendant trial.⁽²³⁶⁾ Three popular configurations of sound equipment in the courtroom are: (1) Portable Wired Equipment--the microphone, amplifier, and the headsets are all hardwired together; (2) Portable Wireless Equipment--microphone, transmitter, receiver, and headset work on a radio frequency; (3) Infrared Equipment--microphone, wire, infrared transmitter, and headsets.⁽²³⁷⁾ Each configuration has its own advantages and disadvantages.⁽²³⁸⁾ If the interpreter will be working with multiple defendants, the judge should discuss with the interpreter which configuration should be used. Arrangements should be made with the clerk for electrical outlets and to ensure that computer or other electronic devices in the courtroom do not interfere with the interpreter's equipment. The judge may need to make arrangements with court officers responsible for security to "clear" this equipment.

K. Oath

Before every proceeding, the court interpreter should swear, in open court, to faithfully, accurately and impartially interpret the proceedings using his or her best skill and judgment.⁽²³⁹⁾ While some courts have held that a defense interpreter does not have to be sworn and limit the oath to witness or record interpreters,⁽²⁴⁰⁾ all interpreters involved in the proceedings should be sworn. The defense interpreter sits at counsel table and interprets the proceeding for the defendant so that he or she is "linguistically present" and is able to follow the proceedings.⁽²⁴¹⁾ If the interpreter fails to interpret the proceedings fully and accurately, the defendant is no longer linguistically present and the defendant's Sixth Amendment and Due Process rights are violated.⁽²⁴²⁾ Because the defense interpreter's role is as vital to the proceedings as the witness interpreter's, both should be sworn at the commencement of the proceedings.⁽²⁴³⁾ However, if the witness interpreter inadvertently fails to take the oath, this failure is not necessarily fatal to the admissibility of the interpretation.⁽²⁴⁴⁾

In a busy arraignment session, the interpreter may be sworn at the beginning of the session in order to save time. However, it is advisable for the judge or the session clerk to indicate on the record that the interpreter has been previously sworn.

  The Mechanics of Interpretation

A judge should expect that a court interpreter will speak clearly.⁽²⁴⁵⁾ The interpreter's rendition should reflect pauses, hesitations, the rate of speed of the witness, and should be delivered in a manner that reflects but does not exaggerate the tone and emotions of the speaker.⁽²⁴⁶⁾

A.  Modes of Interpretation

Generally, qualified court interpreters use three modes of interpretation: simultaneous, consecutive, or sight interpreting (translation).⁽²⁴⁷⁾ A court interpreter may use the simultaneous mode of interpretation or the consecutive mode of interpretation, but should never use the summary mode of interpretation.⁽²⁴⁸⁾ The simultaneous mode of interpretation is the preferred mode in judicial proceedings.⁽²⁴⁹⁾ When using the simultaneous mode of interpretation, the interpreter is required to speak contemporaneously with the speaker.⁽²⁵⁰⁾ This mode of interpreting is often used when the court interpreter is seated at counsel table assisting a non-English-speaking party.⁽²⁵¹⁾ When using the consecutive mode, the interpreter listens and speaks in a sequential manner after the speaker has completed a thought.⁽²⁵²⁾ The speaker may pause at regular intervals to facilitate the conveyance of his or her statements through the interpreter.⁽²⁵³⁾ The consecutive mode of interpretation is often used during plea hearings or with witness testimony.⁽²⁵⁴⁾ Sight interpreting, or translation, occurs when the interpreter orally converts a document written in one language to a different language.⁽²⁵⁵⁾ The trier of fact hears the interpreter's rendition in English.⁽²⁵⁶⁾

The summary mode of interpretation has no place in a court proceeding.⁽²⁵⁷⁾ When using this mode of interpretation, the interpreter summarizes and paraphrases the statements of the speaker.⁽²⁵⁸⁾ This is too dangerous a practice for a judge to allow, especially in a criminal case, because it is the interpreter who then decides what is important to interpret for the defendant.⁽²⁵⁹⁾ This mode of interpretation is used by unqualified interpreters who have difficulty keeping up in the consecutive and simultaneous modes.⁽²⁶⁰⁾

B.  Register

"Register" is the "language level or style used in different settings."⁽²⁶¹⁾ "Various registers might include the legal, the deliberately obscure, the academic, scientific, elegant, cultured, polite, low-rent, vulgar, and deliberately offensive."⁽²⁶²⁾ An interpreter is obligated to duplicate the register or the degree of formality or level of language used by the speaker.⁽²⁶³⁾ "Conservation of register is the most essential element in the preservation of the `voice' of the speaker in combination with precise word choice and the maintenance of paralinguistic elements."⁽²⁶⁴⁾

  The Interpreter at Trial

The court interpreter's responsibility is more than merely to provide an accurate and legally equivalent rendition. The interpreter must be knowledgeable of court procedures for maintaining an accurate and clear record of the proceeding. This includes how the interpreter will identify himself or herself on the record when speaking as "the interpreter" rather than as the voice of a witness or defendant. The interpreter may be faced with a "runaway" witness and must be able to follow the judge's directions for controlling such a witness. Also, at times the interpreter may be faced with challenges to his or her rendition of the testimony. The interpreter should be aware of the procedures the judge may adopt to resolve the challenged rendition.

A. Interpreter on the Record and Accuracy of the Record

A court interpreter should never simplify the questions or statements for a non-English speaker even when the interpreter believes that the non-English speaker cannot understand the speaker's language level.⁽²⁶⁵⁾ The court interpreter must not correct factual errors made in questions put to the non-English speaker.⁽²⁶⁶⁾ The interpreter may not correct the testimony of non-English speakers, even if errors are obvious.⁽²⁶⁷⁾

A qualified court interpreter will always refer to himself or herself as the "interpreter" when addressing the court.⁽²⁶⁸⁾ This practice is followed to avoid confusion on the record.⁽²⁶⁹⁾ For example, if the interpreter does not hear the question posed by the attorney to the witness, the court interpreter should raise his or her hand and address the judge and state, "The interpreter did not hear the question. Would the Court order the attorney to repeat the question?" The judge should then order the attorney to repeat the question.

A court interpreter is obligated to stop the proceeding whenever he or she is unable to understand a word or phrase or needs clarification.⁽²⁷⁰⁾ The court interpreter will signal to the judge and inform him or her of the problem. The judge can order the attorney to repeat or to rephrase the question.⁽²⁷¹⁾

An interpreter may not interpret for more than one party at a trial.⁽²⁷²⁾ For example, if the interpreter is sitting at the defense table serving as a defense interpreter, then the interpreter must not also serve as a witness interpreter if one is required.⁽²⁷³⁾ There are a least three very good reasons for this rule. First, while the defense interpreter is serving as a witness interpreter, the defendant cannot communicate with counsel; thus, depriving the defendant of valuable constitutional rights.⁽²⁷⁴⁾ Equally important, but a less obvious reason, is that the factfinder may associate the interpreter with one party. The factfinder may thus discount part of the interpretation or mistakenly give it more credibility, believing that a party has adopted the testimony of a witness. Also, the interpreter, through long association with the defendant, may become biased.⁽²⁷⁵⁾ Finally, the defendant's interpreter assists defense counsel in ensuring that testimony is being accurately interpreted.⁽²⁷⁶⁾

If an error occurs in the interpretation during a jury trial and the court interpreter realizes the error, the court interpreter must immediately correct the record.⁽²⁷⁷⁾ The interpreter must ask the court's permission to correct the error.⁽²⁷⁸⁾ In the alternative, the court interpreter may request a side-bar conference with the judge and the attorneys to report the error and await the court's instructions.⁽²⁷⁹⁾ The court interpreter should avoid alerting the jury of the problem until the judge has an opportunity to address the jury with appropriate instructions. Often the problem can be solved by the judge ordering the attorney to ask the question again and by having the witness answer the question with the court interpreter providing the correct interpretation.⁽²⁸⁰⁾

If the court interpreter realizes that an error was made after testimony has been completed, the court interpreter must request a bench or lobby conference with the judge and attorneys to explain the problem.

Sometimes the court interpreter needs to consult a dictionary and may ask, "Your Honor, may the interpreter consult a dictionary (or other source) to clarify the meaning of the word?"⁽²⁸¹⁾ The interpreter may ask permission from the judge to request an explanation of a word or phrase used by the witness which is linguistically ambiguous.⁽²⁸²⁾ Again, any departure from the interpreter role should be a last resort.⁽²⁸³⁾

The judge has to rule, in view of the evidence, as to the correct interpretation. If the correct interpretation is different from the original interpretation, the judge must instruct the jury to disregard the first interpretation. The attorney can then repeat the question originally posed to the non-English speaker, so that the correct interpretation can be heard by the jury. Curative instructions will be necessary to inform the jury that the misinterpreted answer is no longer evidence and must be disregarded.

B.  Objection to Witness Testimony

Whenever an objection is made, the court interpreter must interpret everything that is said by the attorney who made the objection.⁽²⁸⁴⁾ The court interpreter must unobtrusively instruct the witness not to speak until the court has ruled on the objection.⁽²⁸⁵⁾ The interpreter must interpret what the attorney or attorneys say to the judge as well as the judge's response when ruling on the objection.⁽²⁸⁶⁾ The reason for this procedure is that a non-English-speaking witness or party in a civil or criminal case is entitled to hear everything that everyone else hears in the courtroom.⁽²⁸⁷⁾

The interpreter, upon hearing the attorney object to a question posed to the witness, must immediately switch from the consecutive mode to the simultaneous mode. This means that the interpreter may not complete the interpretation of the question for the witness. The interpreter abandons the consecutive interpretation of the question and begins simultaneously interpreting the colloquy regarding the objection.

C. Legal Status of a Court Interpreter and Objections to Interpretations

The legal status of a court interpreter is unclear.⁽²⁸⁸⁾ Courts have been unable to articulate a theoretical framework that adequately defines the unique status of a court interpreter.⁽²⁸⁹⁾ Courts have, for evidentiary purposes, considered a court interpreter to be a witness, an expert witness, an agent, or an officer of the court.⁽²⁹⁰⁾ The legal status of a court interpreter is unclear because a court interpreter is sui generis. A court "interpreter is perhaps the only `officer of the court'" who provides expert services.⁽²⁹¹⁾ This section discusses the theoretical models for admitting "interpreter evidence," concludes that it is unnecessary to resolve the conflicting lines of cases, and then suggests a model for handling objections to the interpretation.

Older cases treated the interpreter as a witness because "`[h]e [or she] states, under oath, to the jury what the other witness said; and this testimony--as clearly such as the statement of any ordinary witness who testifies to the declaration or admissions of another person.'"⁽²⁹²⁾

Relying on evidentiary rules, such as the Federal Rules of Evidence, 604⁽²⁹³⁾ and 702,⁽²⁹⁴⁾ some courts have held that an interpreter is an expert witness.⁽²⁹⁵⁾ Under Rule 604, the interpreter must qualify as an expert,⁽²⁹⁶⁾ and under Rule 702, the interpreter must "assist the trier of fact to understand the evidence or to determine a fact in issue."⁽²⁹⁷⁾ Because these courts found that the interpreter was an expert witness, the courts concluded that the appropriate method of resolving any objection to the interpretation was to examine the interpreter on the stand as a witness.⁽²⁹⁸⁾ However, the more recent and better trend is to reject considering the court interpreter as a witness.⁽²⁹⁹⁾

Courts which treat the interpreter as a "fact witness" permit challenges to the interpretation as they permit challenges to any evidentiary issue.⁽³⁰⁰⁾ The attorney desiring to challenge the interpretation calls the interpreter and examines him or her as a fact witness before the jury.⁽³⁰¹⁾ The disputed rendition then goes to the jury as a pure fact question.⁽³⁰²⁾ This model presumes that the interpreter is testifying as a percipient witness. The second model used is the interpreter as an "expert witness."⁽³⁰³⁾ Both sides call their language expert witnesses and the jury observes the battle of the experts (in essence a time-consuming trial within a trial⁽³⁰⁴⁾), and the jury then decides which side's experts are more credible.⁽³⁰⁵⁾ Both of these models ignore the essential function of the interpreter as a language mediator or conduit. Because the witness whose testimony is in dispute is present, the most efficient and accurate method of resolving what the witness "really meant" is to put further fact questions to the witness at side-bar to resolve the challenged rendition.⁽³⁰⁶⁾

To clarify the confusion, the Model Code of Professional Responsibility for Interpreters in the Judiciary treats the interpreter as "an officer of the court"⁽³⁰⁷⁾ rather than as a witness, expert or otherwise. Because the interpreter is no longer a witness or expert, a court may adopt new procedures to address challenges to the interpreter's rendition.⁽³⁰⁸⁾ No longer must a court look to evidentiary analogies to find a basis for admissibility of court interpretation. Treating the court interpreter as an officer of the court allows a judge to consider challenges to the interpretation outside the presence of the jury, and the judge may decide in the case of a disputed rendition, which rendition will be evidence in the trial. Under the court interpreter as witness or expert witness model, this finding was a question of fact for the jury.⁽³⁰⁹⁾

The exception to the interpreter being treated as officer of the court occurs if a judge has to resolve a dispute regarding an interpretation that is objected to by an attorney or a juror.⁽³¹⁰⁾ In these circumstances, the judge should appoint a second certified court interpreter to resolve the dispute regarding the interpretation given by the first court interpreter.⁽³¹¹⁾ The second court interpreter acts as an expert witness by providing an opinion as to the correct usage or meaning of the word or expression in dispute. The judge can believe or disbelieve the opinion of the expert witness called upon to opine on the interpretation provided by the first interpreter. That expert witness should not later perform interpreter services in that same case.⁽³¹²⁾

D. Handling Objections at Trial

Objections to an interpreter's rendition by attorneys should be handled by the court in the same manner as other objections, and the court should ensure that the objection does not become a debate between the attorney and the interpreter.⁽³¹³⁾ The 1988 draft regulations to the Court Interpreter Amendments Act suggest the proper procedure that a judge should follow when an attorney objects to the interpreter's rendition of testimony:⁽³¹⁴⁾

(a) If a party or counsel to a proceeding concludes that an interpreter has made a mistake in interpretation that might materially alter the understanding of the words or phrases interpreted, they shall call the matter to the attention of the presiding judicial officer. The presiding judicial officer shall conduct an inquiry out of the hearing of the jury, if any, as to the materiality of the alleged error. If the presiding judicial officer finds that the error might affect the understanding of the finder of fact, they shall:

(1) request that the question and answer at issue be read back;

(2) obtain from the challenger a specification of the alleged error and the interpretation advanced by the challenger as the correct interpretation of the challenged material; and

(3) inquire of the interpreter if the alternative proposed by the challenger is acceptable to the interpreter.

(b) If the dispute cannot be resolved by agreement, the presiding judicial officer shall decide after hearing both sides of the question which interpretation is the proper one under the circumstances. In making such determination, the version offered by the assigned [certified] interpreter shall be presumed correct, and the burden of proof shall be upon the party or counsel challenging the interpreter.⁽³¹⁵⁾

If the interpreter does not accept the attorney's proposed alternative rendition, the conflict may be resolved by having the judge or an attorney ask the witness a clarifying question at side-bar or outside the presence of the jury. If the judge accepts the interpreter's rendition, then the objection should be overruled. If the judge rejects the interpreter's rendition, the judge should sustain the objection on the record, make appropriate findings on the record, and ask the attorneys how the accepted rendition should be conveyed to the jury. The most effective method of doing this is to instruct the jury to disregard the previous question and answer, to have the attorney re-ask the question, and to have the witness re-answer the question with the interpreter providing the accepted rendition.

E. Controlling a Witness Through an Interpreter

If an interpreter is faced with a witness giving rambling or non-responsive answers, the interpreter should interpret the answer of the witness, neither editing nor adding to the witness's words.⁽³¹⁶⁾ It is the duty of the court, not of the interpreter, to determine whether the answer is responsive or admissible.⁽³¹⁷⁾

When . . . it is obvious that the witness is repeatedly giving non-responsive, overly lengthy answers, the judge should adopt special procedures . . . to control the witness . . . . [I]t may be necessary frequently to instruct the witness to limit his or her answer when a "Yes" or "No," or other specific response, is all that is called for by the question. Non-English speaking witnesses [when repeatedly giving non-responsive or overly lengthy answers] present problems since the judge is often unable to stop the witness in midstream in order to focus the [witness's] attention on the question asked.⁽³¹⁸⁾

The judge may also request that attorneys formulate their questions so that a specific answer must be given. A judge cannot delegate the responsibility to determine admissibility of the evidence to the interpreter.⁽³¹⁹⁾ "For example, an instruction to the interpreter to [interpret] only that part of the answer that is responsive to the question would be error."⁽³²⁰⁾

F.  Preserving the Record

Frequently, appellate judges complain about the paucity of the trial court record and their inability to review the interpretation at trial.⁽³²¹⁾ Absent special efforts by the attorney or the court, the record is only a transcript of the English language that is spoken in the courtroom.⁽³²²⁾ The court reporter does not maintain a record of non-English testimony.⁽³²³⁾ Accordingly, absent an audio record of the proceedings, there will be nothing in the English language record for an appellate court to review.⁽³²⁴⁾ In order to preserve interpreter error for review, the judge or attorney must take steps to record the foreign language testimony.⁽³²⁵⁾ This is as simple as using an audiotape recorder⁽³²⁶⁾ or the better choice is a videotape recording of the witness and interpreter.⁽³²⁷⁾

The interpreter will not preserve the record to reflect visual or oral cues or demonstrations.⁽³²⁸⁾ For example, if a witness points to the defendant, or if a witness slurs his or her speech or stutters, the record will not reflect such activities. If visual or oral characteristics are relevant, the judge or attorney must place the relevant characteristics on the record.⁽³²⁹⁾ For example, the judge may state that "the record will reflect that the witness pointed to the defendant and screamed, `he did it.'"

G.  Interpreter Burnout--The Fatigue Factor

A presiding judge should be aware that it is very tiring to interpret for long periods of time.⁽³³⁰⁾ When an interpreting session does not exceed thirty minutes, one interpreter is usually sufficient.⁽³³¹⁾ Because interpreting requires intense concentration to hear each word to then render it into the target language, the United Nations, the United States Department of State, and the federal courts have determined that thirty minutes is the period of maximum efficiency for an interpreter using the simultaneous mode.⁽³³²⁾ Generally, court interpreters should change every twenty minutes or so "during natural breaks in the [proceedings] such as bench conferences" or between witnesses.⁽³³³⁾ However, if a court interpreter believes that he or she is not able to provide accurate interpretation due to fatigue, the interpreter is obligated to inform the court.⁽³³⁴⁾ If a court interpreter informs the court that he or she is tired, the court should, consistent with the needs of the trial, take a brief recess at the next available opportunity. Some jurisdictions provide for teams of two court interpreters when the proceeding will be longer than two hours.⁽³³⁵⁾ If it is feasible, "two court interpreters should . . . be assigned so that they can relieve each other at periodic intervals and prevent fatigue and delays."⁽³³⁶⁾

H. Commenting on an Interpreter

Occasionally, an attorney will try to impeach a defendant or witness by showing that the defendant or witness does not normally use an interpreter for ordinary conversation purposes. The language of the courts, however, is not akin to ordinary conversation; therefore, a defendant or witness should not be "penalized" because he or she requires a court interpreter.⁽³³⁷⁾ "[A]n attack on a defendant's credibility based on his [or] her desire to testify through an interpreter should not be the preferred mode of impeachment, as it comes perilously close to impinging upon the defendant's exercise of his [or] her fundamental constitutional rights."⁽³³⁸⁾

  Bilingual Judge, Clerk, or Other Court Officers and the Court Interpreter

Bilingual court officials often serve as the only "check" on the accuracy of the court interpreter.⁽³³⁹⁾ This section will briefly discuss the relationship of the bilingual judge and his or her staff and the court interpreter. The underlying assumption of this section is that if the court interpreter has been certified after successfully passing a reliable and valid test or that if the judge has properly qualified the interpreter through a voir dire, the interpreter is entitled to a presumption that his or her interpretation is correct.⁽³⁴⁰⁾ While a bilingual judge, clerk, or court officer may notice putative errors in interpretation, the judge, clerk, and court officer all have other demanding duties to ensure the proper administration of justice and cannot be expected to monitor the interpreter's accuracy. For example, a bilingual judge cannot monitor the testimony in the source language and the interpretation into the target language, observe the manner and demeanor of the witness, anticipate objections and rulings of law, as well as all the other details the judge must monitor during a trial.⁽³⁴¹⁾ Therefore, neither attorneys nor appellate courts should consider the mere presence of bilingual court personnel to be a guarantee of accurate interpretation.⁽³⁴²⁾

A.  The Bilingual Judge

There are times when a bilingual judge plays a special role in detecting obviously incompetent court interpretation.⁽³⁴³⁾ However, while a bilingual judge may be competent to evaluate an interpreter's bilingual ability, the judge still is not a court interpreter, nor does he or she have any expertise in this area.⁽³⁴⁴⁾ As discussed previously, a court interpreter is much more than a bilingual individual.⁽³⁴⁵⁾ A bilingual judge should not serve as an interpreter and should conduct all the proceedings in English.⁽³⁴⁶⁾ A bilingual judge, although well intentioned, is not competent to determine an interpreter's abilities. "Real errors may go unperceived, or correct interpretations may be falsely perceived as erroneous, as when there are regional variations in usage, or if there are false cognates."⁽³⁴⁷⁾ Furthermore, a judge should not have to take on the additional burden of monitoring the proceeding and the interpretation at the same time.⁽³⁴⁸⁾ The only way that an interpreter's abilities can be judged, is to administer a reliable and valid certification examination developed by experts in the field.⁽³⁴⁹⁾

A judge may desire, as a matter of courtesy, to briefly greet an attorney, witness, or defendant in his or her native language.⁽³⁵⁰⁾ But the practice of greeting attorneys, witnesses or parties in a language other than English should be discouraged.⁽³⁵¹⁾ This practice may create the appearance to attorneys, jurors, witnesses, or spectators, who do not share the judge's and party's or witnesses's common language, that the judge is biased for or against the person being greeted, or that in the future the judge may show some favoritism toward members of that linguistic group.⁽³⁵²⁾ Also, an attorney may become worried about the ex parte communication.⁽³⁵³⁾ Therefore, if a judge does use a language other than English, the judge should put on the record that the judge greeted the person in the foreign language.⁽³⁵⁴⁾ If the comments are more than a brief greeting of the day, the judge should instruct the interpreter to interpret into English the judge's comments and the response for the record. The judge should then explain, in English, through the interpreter to the person why the judge will conduct the remaining proceedings entirely in English and instruct the person to communicate through the interpreter.⁽³⁵⁵⁾ Finally, "[s]ince all proceedings must be conducted in English, it should be obvious that it is what the interpreter states on the record, not what the court may, conceivably, have understood the witness to say, that must control both the trial and the appeal."⁽³⁵⁶⁾ Therefore, in cases tried before a bilingual judge, the judge must be careful to correct the record and to make appropriate findings as to the rendition, prior to making findings of fact that may differ from the interpreter's rendition of the testimony.

B.  Clerk or Court Officer

A judge who is fortunate enough to have bilingual court personnel should discuss with them potential problems with unqualified court interpreters and establish a policy of how to deal with errors or problems with the interpretation that the clerk, court reporter, or bailiff may be aware of during the course of the trial. The best course of action is to ask the bilingual court officer to send a note to the bench or to bring it to the judge's attention privately at side-bar or during any other convenient break in the proceedings. Regardless of the outcome, the judge should thank the court officer even if the judge ultimately accepts the interpreter's rendition. Fortunately, this type of vigilance or concern is usually unnecessary when using a certified interpreter.⁽³⁵⁷⁾

C.  The Court Interpreter

A bilingual judge, clerk, or court officer should be sensitive to the dual role of the court interpreter as an officer of the court and as a language expert. If the judge is bilingual or is notified by a bilingual attorney or court personnel of an error in the interpretation rendered by an uncertified interpreter,⁽³⁵⁸⁾ the judge should discuss the questioned interpretation at side-bar with the interpreter and attorneys.⁽³⁵⁹⁾ The judge should not automatically assume that the alternative rendition is more accurate. The judge should question the interpreter about the challenged rendition with extreme tact and due respect to the interpreter's role as a language expert.⁽³⁶⁰⁾ Most interpreters will have a bilingual dictionary or other reference sources available. Such sources may quickly resolve the dispute. If they do not, usually any problems with the interpreter's rendition can be resolved through the judge or attorney asking the witness additional questions to clarify the disputed rendition.

The judge or attorney should avoid asking leading questions to clarify the disputed interpretation.⁽³⁶¹⁾ For example, the word "maceta" in Spanish "can mean flowerpot, small mallet, stonecutter's hammer, or large drinking class."⁽³⁶²⁾ The witness testifies that the defendant threw a maceta at the victim.⁽³⁶³⁾ Rather than asking the witness if the defendant threw "a flowerpot," the witness should be asked, "what was the maceta used for?"⁽³⁶⁴⁾ because a leading question could suggest the "right" answer to the witness.⁽³⁶⁵⁾ Alternatively, in many jurisdictions, the judge has broad discretion to put questions to a witness during the course of a trial, and may wish to ask a clarifying question without formally questioning the interpreter's rendition.⁽³⁶⁶⁾ When using a certified interpreter, a judge should presume that the court interpreter's rendition is correct.

Unfortunately, at times, an attorney or judge may challenge an accurate rendition of a witness's testimony--and may even do so in a brusque manner. The interpreter must attempt to avoid personalizing the attorney's or judge's questioning of the interpreter's rendition. Such objections arise out of the judge's duty to ensure a fair trial.⁽³⁶⁷⁾ This may mean that at times when a bilingual judge hears a rendition of witness testimony that materially differs from the original language testimony, the judge may wish to question the interpreter as to the accuracy of the interpretation. At other times, a bilingual attorney may object to the interpreter's rendition of the testimony. The duty of attorneys at trial is to zealously advocate the position of the parties they represent. Consequently, it is rare that the attorney for each side is satisfied with the interpreter's rendition. One side is almost always going to argue that the rendition unnecessarily minimized or maximized some aspect of the witness's testimony. Moreover, each attorney must place his or her objections to the interpretation on the record, so that the judge may rule on the objection and to preserve the objection for further judicial proceedings.

The interpreter should not view objections as an attack on his or her professional competence, but rather as an opportunity to demonstrate to the judge that the rendition was correct or as an opportunity to correct an error in the rendition. When faced with an objection to a rendition, the interpreter should patiently remain silent.⁽³⁶⁸⁾ If the objection results in a side-bar conference, the interpreter should not interrupt the side-bar discussion between the judge, the attorneys, and/or a bilingual juror unless asked a question. Because the judge and attorneys are not language experts, there may be occasions when the interpreter should request permission from the judge to make a recommendation on the objection. Ultimately, an interpreter should remember that the objection is a question of law that the judge must decide.

  The Bilingual Attorney

A bilingual attorney should be appointed when available to assist a non-English-speaking, indigent defendant,⁽³⁶⁹⁾ but a defendant has no right to a bilingual attorney.⁽³⁷⁰⁾ Some judges appoint bilingual attorneys to avoid the need of appointing a court interpreter for the proceedings.⁽³⁷¹⁾ The appointment of a bilingual attorney, however, will not solve the language problem in the courtroom.⁽³⁷²⁾ Asking a bilingual attorney to serve both as counsel and as a defense interpreter denies the defendant of both effective representation and effective court interpretation of the proceedings.⁽³⁷³⁾ This is so because an attorney cannot represent a client and interpret in the courtroom simultaneously.⁽³⁷⁴⁾ Moreover, when a bilingual attorney serves multiple roles in the proceedings, it may confuse the issue as to whether the attorney is "counsel" or "interpreter."⁽³⁷⁵⁾ A bilingual attorney who desires to challenge an interpreter's rendition of a witness's testimony is placed on the horns of a dilemma. As an attorney, the lawyer must zealously advocate the client's position by placing the objection on the record.⁽³⁷⁶⁾ For example, if a defense interpreter is present, the bilingual attorney would call the defense interpreter as an expert witness and place both the error and preferred rendition of the interpretation on the record.⁽³⁷⁷⁾ If only a bilingual attorney is present, he or she risks becoming the expert witness in order to preserve the objection for the record.⁽³⁷⁸⁾ Attorneys are ethically prohibited from being witnesses in cases in which they are also counsel.⁽³⁷⁹⁾ Finally, a bilingual attorney should not communicate with his client "on the record" except through the court interpreter and in English.⁽³⁸⁰⁾ The attorney may, of course, use whichever language he or she chooses for confidential client communications.

VIII.  The Bilingual Juror

Attorneys often object to having bilingual individuals serve as jurors in a case in which interpreted or translated evidence will be important. Usually, these objections are "based on one or both of [the following] two fears":

First, that the interpreter's version of the testimony will differ materially from the actual testimony, so that bilingual jurors will hear and rely upon a different version of the testimony than monolingual English- speaking jurors. Second, assuming that the interpreter's version is faithful to the original [non-English] testimony, bilingual jurors could claim that the [non-English] testimony was different from what the interpreter said it was, and so undermine potentially the jury's deliberations.⁽³⁸¹⁾

As for the first fear, if the interpreter is faithfully interpreting the proceedings, this fear is groundless, and there is no reason to remove the bilingual individual from the jury pool.⁽³⁸²⁾ However, if the interpreter is unqualified, removing a bilingual individual from the jury pool because he or she may be the bearer of the bad news is an irrational response to a failure in the criminal justice system.⁽³⁸³⁾ The appropriate response is for the judge and attorneys to work together to ensure that only qualified individuals serve as interpreters, so that both bilingual and monolingual persons hear the same true voice of the witness.

As for the second fear, it too is groundless if the judge provides the bilingual juror with an avenue to correct any problems with a misinterpretation and properly instructs the jury that only the English language interpretation is evidence.⁽³⁸⁴⁾ For example, the judge may instruct the bilingual juror that if he or she has any questions regarding a rendition, he or she should send a note to the judge through a court officer. If the bilingual juror fails to do so, he or she cannot credibly go into the jury room and argue his or her preferred rendition of the evidence and that the interpreter was wrong.⁽³⁸⁵⁾

Full discussion of the legal role of a bilingual juror is beyond the scope of this article.⁽³⁸⁶⁾ The focus of this Part is on working with court interpreters and bilingual jurors. However, this is what should not happen:

[Bilingual JUROR]: Your Honor, is it proper to ask the interpreter a question? I'm uncertain about the word La Vado [sic]. You say that is a bar.

THE COURT: The Court cannot permit jurors to ask questions directly. If you want to phrase your question to me--

[JUROR]: I understood it to be a restroom. I could better believe they would meet in a restroom rather than a public bar if he is undercover.

THE COURT: These are matters for you to consider. If you have any misunderstanding of what the witness testified to, tell the Court now what you didn't understand and we'll place the--

[JUROR]: I understand the word La Vado [sic]--I thought it meant restroom. She translates it as bar.

[INTERPRETER]: In the first place, the jurors are not to listen to the Spanish but to the English. I am a certified court interpreter.

[JUROR]: You're an idiot [or it's an idiom].⁽³⁸⁷⁾ First, there is never a reason for a juror and a court interpreter to engage in this sort of conversation. The proper procedure is for the interpreter to wait for the court to handle the problem. If the judge or

the attorneys had any questions, they would have posed them to the interpreter. The interpreter's response to the challenged rendition, while understandable, was impermissible;⁽³⁸⁸⁾ however, problems like this may be avoided with proper planning. If interpreted testimony is going to be significant, then the judge should discuss with the attorneys how to instruct the jury. If bilingual jurors are on the panel, the jury must be instructed that only the English language rendition, as provided by the court interpreter, is evidence in the case, and that they must disregard any contrary meaning from the source language.⁽³⁸⁹⁾ Second, the judge should discuss with counsel how to address any concerns of bilingual jurors relating to the accuracy of the interpreter's rendition. A slight modification of the procedure used in Perez is an excellent option. After the above dispute, the court in Perez instructed the jury as follows:The Court recognizes that some of the jurors may be able to understand Spanish, and your own ears will tell you what you hear. This witness is testifying through an interpreter, but if those of you who can in fact understand Spanish hear certain words differently that you understand the interpreter to relate them, then you may, when the witness is finished with his testimony, you may place your question, you may raise the question that you have with the Court. If the Court feels that it is a question that can be properly answered, then the Court will take care of attempting to get it answered. But we are obviously going to break down if individual jurors want to ask questions of the interpreter or of the witness directly. The reason for that is, some of those questions may be what the law declares to be incompetent. That would result in prejudicial error either to the defendant or to the government.⁽³⁹⁰⁾

This instruction allows the bilingual juror to resolve any questions he or she may have regarding the interpretation and assists the court by bringing possible problems with the interpretation to the court's attention.⁽³⁹¹⁾ Therefore, such an instruction should be given at the beginning of trial. In sum, the court should also instruct the bilingual juror that he or she should send a note to the court through a court officer, if he or she questions the interpretation. Further, the juror should not say anything to the other jurors until the court responds to the juror's question regarding the rendition. The court should consult with the attorneys and the interpreter and then respond to the question. Often this can be resolved by an appropriate instruction and by permitting the attorney to re-ask or rephrase the question.

  Ethical Considerations for Judges and Court Interpreters

A judge must be sensitive to many different aspects of ethical conduct in the proper use of court interpreters. First and foremost, the judge, attorneys, court personnel, and parties must remain aware at all times that the court interpreter is a professional who is bound by a code of professional ethics, which the interpreter takes just as seriously as a judge does the Canons of Judicial Ethics, or as the attorneys do the state Code of Professional Responsibility. Accordingly, the judge, attorneys, and other court officials should be aware of the ethical norms for interpreters, avoid asking a court interpreter to act unethically, and respect the interpreter's judgment on interpreter ethical issues that may arise during trial. For example, a judge should not order an interpreter to engage in unethical conduct, such as not fully or completely interpreting the proceedings.⁽³⁹²⁾ Because the Model Code of Professional Responsibility for Interpreters in the Judiciary is reproduced as an appendix,⁽³⁹³⁾ and because ethical issues are presented throughout the article, this section is rather brief and does not indicate the relative importance of court interpreter ethical issues in protecting the rights of linguistic minorities.

A. Model Code of Professional Responsibility for Interpreters in the Judiciary

The Model Code of Professional Responsibility for Interpreters in the Judiciary (Model Code) is the most definitive statement of a court interpreter's ethical and professional responsibility. The Model Code is based on essential principles derived from "statutes, rules, case law, and professional experience."⁽³⁹⁴⁾ The Model Code was prepared with the assistance of an advisory group of "judges, lawyers, court administrators, and state and federally certified professional interpreters."⁽³⁹⁵⁾ The goal of the Model Code is to establish "a core set of principles . . . recommended for incorporation in similar [state] codes," to be referenced in jurisdictions where no code of conduct exists, and to provide guidelines for the "training of interpreters and other legal professionals."⁽³⁹⁶⁾ The Model Code provides that the goal of court interpretation is to remove the "communication barrier . . . as far as possible, so that these persons [with limited English speaking ability] are placed in the same position as similarly situated persons for whom there is no such barrier."⁽³⁹⁷⁾ The Model Code is not only binding on court interpreters but also "upon all persons, agencies and organizations who administer, supervise use, or deliver interpreting services to the judiciary."⁽³⁹⁸⁾

B. Ten "Musts" for Ethical Court Interpretation

Both the Model Code and the Model Court Interpreter Act have strong prohibitions against court interpreter misconduct and provide aspirational goals for court interpreters. For a trial judge, these prohibited practices and aspirational goals can be distilled into ten "musts" in order to ensure fair judicial proceedings.

A court interpreter:

(1) must never give any legal advice to anyone;⁽³⁹⁹⁾

(2) must refer any legal questions to the attorney;⁽⁴⁰⁰⁾

(3) must remain impartial;⁽⁴⁰¹⁾

(4) must never disclose confidential or privileged information or make a false interpretation;⁽⁴⁰²⁾

(5) must inform the court when he or she has made a mistake in interpreting as soon as it becomes known to the interpreter;⁽⁴⁰³⁾

(6) must completely interpret the proceedings;⁽⁴⁰⁴⁾

(7) must at all times behave as an officer of the court;⁽⁴⁰⁵⁾

(8) must avoid unnecessary discussions with the attorneys, parties and witnesses, inside and outside the courtroom;⁽⁴⁰⁶⁾

(9) must not perform the duties of other court officials, such as court clerks, pre-trial release investigators, probation counselors, and social workers;⁽⁴⁰⁷⁾ and

(10) must notify the court if for any reason the interpreter cannot provide an accurate interpretation.⁽⁴⁰⁸⁾

C.  Ethical Relations Between Court Interpreters

If an interpreter is present in court and notices that another interpreter has made an error in interpretation, the observing interpreter should tactfully bring the error to the attention of the interpreter providing the interpreting services to the court at the earliest possible point in the proceedings, and provide that interpreter with an opportunity to correct the record.⁽⁴⁰⁹⁾ If the interpreter fails to do so, the observing interpreter should then request a side-bar conference with the court, the attorneys, and the other interpreter to notify the court of the disputed interpretation.⁽⁴¹⁰⁾

  Coloring the Interpretation

Legal literature is replete with instances in which a misinterpretation affected the substantive rights of parties,⁽⁴¹¹⁾ and linguists have discovered what attorneys naturally know--that the manner and demeanor of a witness affects credibility. For example, a defendant testifying using complete sentences is more likely to be acquitted than a defendant testifying in sentence fragments.⁽⁴¹²⁾ However, many judges and attorneys are not aware of the impact that even minor alterations by an interpreter may have on a juror.⁽⁴¹³⁾ Even minor differences such as dialect, accent, voice quality, and linguistic fluency are related to how a listener views the speaker's trustworthiness, "likability," and benevolence.⁽⁴¹⁴⁾ Accordingly, interpreters may subtly, even unconsciously, affect the outcome of the proceedings through their interpretation strategy.⁽⁴¹⁵⁾ This section discusses six ways a court interpreter may "color" the interpretation and affect how a juror evaluates a witness or attorney in four areas: convincingness, competence, intelligence, and trustworthiness. These four areas are essential in making a credibility determination.

A.  Interpretation Strategies that Bias the Jury

This discussion of how interpreters influence the factfinder is based on research reported in Professor Susan Berk-Seligson's seminal work, The Bilingual Court Room: Court Interpreters in the Judicial Process.⁽⁴¹⁶⁾ To briefly summarize the research methodology, the study involved over 500 mock jurors (subjects);⁽⁴¹⁷⁾ some of whom were bilingual in English and Spanish.⁽⁴¹⁸⁾ The basic methodology was to expose a mock juror to an audiotape of Spanish language testimony and an audiotape of an English language interpretation.⁽⁴¹⁹⁾ The variables were changes in the interpretation or manner of interpretation.⁽⁴²⁰⁾ The mock jurors then evaluated the witness, testimony, or attorney based on four characteristics: convincingness, competence, intelligence, and trustworthiness.⁽⁴²¹⁾ Only the statistically significant results are discussed in this article.⁽⁴²²⁾

1.  Politeness

When interpreting, interpreters will often use a polite form of address even if such was not used in the original.⁽⁴²³⁾ An example of this is the witness saying "No," and the interpreter saying "No, Sir." Linguistic research supports that the mere adding of a "Sir" or a "Ma'am" to a "yes" or "no" may affect how a juror evaluates a witness.⁽⁴²⁴⁾ In one study, the witness answered politely in Spanish, and the variable was whether the interpreter provided the English polite term.⁽⁴²⁵⁾ Using mock jurors, researchers discovered the jurors evaluated witnesses who used terms like "sir, ma'am, or miss" more favorably for the traits of "convincingness, competence, intelligence, and trustworthiness."⁽⁴²⁶⁾ The interpretation affected even how Spanish-speaking mock jurors viewed the witness's intelligence and competence.⁽⁴²⁷⁾ Note that the Spanish- speaking mock jurors were able to understand both the original and the interpretation; yet the interpretation still affected how the jurors viewed the witness.⁽⁴²⁸⁾ Accordingly, the interpretation had some impact on even the Spanish-speaking mock jurors who understood both versions of the testimony. Therefore, a trial judge should be very sensitive to even very minor "errors" in the interpretation if brought to his or her attention.

2.  Hyperformality

A change in the witness's register⁽⁴²⁹⁾ from the casual to the formal affects how jurors evaluate a witness for convincingness, competence, intelligence, and trustworthiness.⁽⁴³⁰⁾ Professor Berk-Seligson examined the use of a hyperformal style.⁽⁴³¹⁾ A hyperformal style

sounds bookish and stilted on account of two principal speech characteristics: (1) the lack of ellipsis or syntactic deletions . . . which produces overly-complete surface construction (e.g., in answer to the questions "how old are you?," a hyperformal response would be "I am twenty-one years old," rather than the more typical reply "I'm twenty-one" or, simply, "Twenty-one"); and (2) the failure to contract linguistic elements that are frequently contracted in consultative style (e.g., . . . "am not" for "aren't" and "is not" for "isn't").⁽⁴³²⁾

Some interpreters regularly interpret Spanish language testimony of a witness in a hyperformal style of English.⁽⁴³³⁾ Witnesses whose testimony is interpreted in a formal style were evaluated by mock jurors as more convincing, competent, intelligent, and qualified than witnesses whose testimony is interpreted in a less formal style.⁽⁴³⁴⁾ Professor Berk-Seligson concluded that "one can never speak too formally on the witness stand, so long as one does not end up producing hypercorrections."⁽⁴³⁵⁾

3.  Active Versus Passive Voice

A witness whose testimony was interpreted in the passive voice was generally evaluated by mock jurors as less intelligent or trustworthy than witnesses whose testimony was interpreted in the active voice.⁽⁴³⁶⁾ "The active voice is usually more direct and vigorous than the passive."⁽⁴³⁷⁾ The passive voice is "less direct, less bold, and less concise."⁽⁴³⁸⁾ The passive voice in English is created using a form of the verb "to be" and the past participle. For example, "The court interpreter translated the document" is the active voice and "The document was translated by the interpreter" is the passive voice.

4.  Hedging

"Hedging" is the use of a word or phrase that leaves the listener the option of determining how seriously to take the statement.⁽⁴³⁹⁾ Hedging is significant in the judicial setting because it may be used by a witness to mitigate or soften testimony.⁽⁴⁴⁰⁾ Hedges create an impression that the witness is hesitant or uncertain.⁽⁴⁴¹⁾ Consequently, a juror listening to "hedged" testimony is uncertain of that testimony.⁽⁴⁴²⁾ Hedging is often interpreted as "obfuscation or deception,"⁽⁴⁴³⁾ and leads the listener to conclude that the witness did not want to testify to the unvarnished truth.⁽⁴⁴⁴⁾

In the context of court interpretation, what is significant is that even relatively innocuous words like "well" may hedge a subsequent statement.⁽⁴⁴⁵⁾ The use of "well" and other hedges weakens the apparent certainty of the witness.⁽⁴⁴⁶⁾ Because some hedges like "well" are so innocuous, so minor, the interpreter may add them when not in the original, or delete them in interpretation, thus affecting credibility determinations.⁽⁴⁴⁷⁾

5.  Interrupting the Attorney

Attorneys who were interrupted by an interpreter during the examination of a witness were viewed by mock jurors as less competent.⁽⁴⁴⁸⁾ Hispanic jurors viewed the attorney as both less competent and less intelligent.⁽⁴⁴⁹⁾ To the extent that the attorney as an advocate is "on trial," these studies indicate that the interpreter can affect how the factfinder views the defense.

6. Interrupting or Prodding the Witness

Mock jurors evaluated witnesses and attorneys who were interrupted or cued by interpreters to slow down their responses.⁽⁴⁵⁰⁾ In their evaluation, Hispanic jurors found the witness to be less convincing and competent.⁽⁴⁵¹⁾ This effect, however, did not spill over to how mock jurors viewed the attorney.⁽⁴⁵²⁾

Mock jurors also evaluated witnesses who were prodded to answer in an intelligible fashion rather paralinguistic sounds like "mhm" or "aja" ("ahuh" in English). Witnesses whose testimony was literally interpreted were viewed as less intelligent than those whose testimony was prodded.⁽⁴⁵³⁾ Interestingly, in cases where there was no prodding by the interpreter, the attorney was also viewed as less competent and less persuasive.⁽⁴⁵⁴⁾

B.  Some Final Thoughts on Coloring the Interpretation

Existing research demonstrates even minor errors in interpretation may affect how a factfinder views a witness.⁽⁴⁵⁵⁾ Accordingly, judges, attorneys, and interpreters must be constantly vigilant that at all times the interpreter is interpreting everything that is said in the appropriate grammatical form and register.⁽⁴⁵⁶⁾ Moreover, the "visibility" of the interpreter in the courtroom may affect how the jury views the counsel, the witness, and possibly, the court itself.⁽⁴⁵⁷⁾ This research further supports the need for professional certified court interpreters because most of the problems discussed above can be eliminated or minimized through proper court interpreter training.⁽⁴⁵⁸⁾

  A Few Misconceptions

There are a few popular misconceptions that must be dispelled. The first misconception is that if a person is bilingual, the person is qualified to interpret a court proceeding.⁽⁴⁵⁹⁾ The experience of the Administrative Office of the Courts of New Jersey in testing bilingual persons in several languages demonstrates poor test results achieved by individuals seeking employment as court interpreters.⁽⁴⁶⁰⁾ As of April 25, 1995, only 7.6% of the bilingual individuals who took the Spanish court interpreter screening test passed.⁽⁴⁶¹⁾ Of the individuals who took the Haitian Creole test, only 7.4% passed the interpreter screening test.⁽⁴⁶²⁾ The experience of Washington State is similar.⁽⁴⁶³⁾ Through February 23, 1995, only 12.5% of the individuals who took the Spanish test passed.⁽⁴⁶⁴⁾ The Federal Court interpreter examination statistics are more surprising. The overall certification rate for the Spanish/English written and oral examination from 1980 through 1993 was only 3.9%.⁽⁴⁶⁵⁾ The overall certification rate for the written and oral Navajo examination from 1989 through 1992 was 8.6%.⁽⁴⁶⁶⁾ Finally, the overall certification rate for the Haitian Creole/English examination between 1989 through 1992 was 3.8%.⁽⁴⁶⁷⁾

Another misconception is that defendants in criminal cases have little to contribute in their own defense.⁽⁴⁶⁸⁾ Perhaps this is true in some cases, but it is wrong to assume that it is true in all cases. A defendant in a criminal case has the constitutional right to the effective assistance of counsel.⁽⁴⁶⁹⁾ That means that the defendant should be able to communicate with the attorney.⁽⁴⁷⁰⁾

We recognize that it may be of value to a defendant in a criminal case to be able to communicate orally with his counsel in the course of a witness's testimony, for he may have information which may aid counsel in examining the witness. Ordinarily, however, his counsel is in control of the examination of witnesses and the tactics he wishes to employ and normally is far more skilful in the conduct of the defence than is the defendant.⁽⁴⁷¹⁾

  The Future of Court Interpretation

The future of court interpretation is unclear; however, the trend appears to be increasing cooperation between the state courts, and between state and federal courts. It appears that the future will also involve a growing reliance on technology in the courtroom to compensate for scarce financial resources and the lack of certified court interpreters. Another positive sign is the increasing awareness of judges, attorneys, and other public officials of the need for qualified court interpreters.⁽⁴⁷²⁾

A.  The State Court Certification Consortium

The National Center for State Courts and state court administrators from the states of Washington, New Jersey, Oregon and Minnesota have established a national State Court Interpreter Certification Consortium to pool resources for developing and administering interpreter testing and certification programs.⁽⁴⁷³⁾ Maryland, New Mexico and Virginia recently joined the Consortium.⁽⁴⁷⁴⁾ Utah and the First Judicial District of Pennsylvania are seeking budgetary authorizations to become members.⁽⁴⁷⁵⁾

Minnesota and Oregon are underwriting costs of the Consortium organization, development of the prototype testing model, modifications of the Consortium model test, and new test development in Russian and Hmong.⁽⁴⁷⁶⁾ The National Center for State Courts has assisted in the planning and establishment of this organization and has served as the Consortium administration entity. The National Center for State Courts will serve as a repository for all tests and coordinate new applications for member states.⁽⁴⁷⁷⁾ The National Center for State Courts also plans to establish a national registry of certified court interpreters.⁽⁴⁷⁸⁾

Under current guidelines, the member states must contribute $25,000 to a fund dedicated to the development of interpreter examinations in several languages.⁽⁴⁷⁹⁾ Membership in the Consortium binds the member states to compliance with test preparations and administration standards to ensure the security and integrity of the testing process.⁽⁴⁸⁰⁾

States could join the Consortium and achieve tremendous cost-saving in the design and development of language certification tests. Another advantage of the Consortium is that interstate standardized tests will permit interpreters to be certified in more than one jurisdiction; thus, increasing the supply of certified court interpreters.

B. Technology in Interpretation

Several states and the federal courts are experimenting with using telephonic interpretation as opposed to the more traditional in-person interpretation.⁽⁴⁸¹⁾ Telephonic or televideo interpretation can offer much to the courts.⁽⁴⁸²⁾ Courts in rural areas can have instant access to a wide variety of languages at a moment's notice.⁽⁴⁸³⁾ Even courts in large metropolitan areas can have instant access to languages spoken by only a handful of people.⁽⁴⁸⁴⁾ Therefore, defendants are not held in jail waiting for an interpreter.⁽⁴⁸⁵⁾ Court interpreters do not waste valuable time commuting between courts or down time waiting for the case in which they are interpreting to be called.⁽⁴⁸⁶⁾ Attorneys and court personnel do not have to spend time tracking down an interpreter.⁽⁴⁸⁷⁾ In addition, judges do not have to delay, schedule, or reschedule proceedings around the availability of an interpreter.⁽⁴⁸⁸⁾ While technology holds great promise in this area, so far that promise has not been fulfilled.⁽⁴⁸⁹⁾

1. Federal Court Use

The federal courts experimented with telephonic interpreters between 1990 and 1993, but the federal courts may only use interpreters who are certified or qualified by the Administrative Office of the United States Courts.⁽⁴⁹⁰⁾ Because simultaneous interpretation is not possible with ordinary phone equipment,⁽⁴⁹¹⁾ federal courts use special equipment and two telephone lines.⁽⁴⁹²⁾

Using two telephone lines and the specialized equipment, it is possible for simultaneous interpretation to take place and also to accommodate private conversations between defendant and counsel. The first telephone line is attached to a speaker phone in court. This allows the interpreter to hear what is said in court. The second telephone line is attached to a handset provided to the defendant. The interpreter listens to the signal coming in on the first line and [interprets] into the second line, which only the defendant can hear. (Extensions on the line would allow more than one defendant to listen to the interpreter.)⁽⁴⁹³⁾

The system can be easily set up so that when the attorney picks up his or her extension, the courtroom speakerphone is disconnected so as to allow private attorney-client communications.⁽⁴⁹⁴⁾ Overall, this is an effective method of providing certified or qualified interpreters anywhere they are needed.

2. National Center for State Courts Experiment

The National Center for State Courts tested a prototype speakerphone in 1994.⁽⁴⁹⁵⁾ Designed by Jefferson Audio/Video Services of Louisville, Kentucky, this equipment made simultaneous interpretation possible using just one telephone line.⁽⁴⁹⁶⁾ The equipment permitted only the defendant to hear the interpretation during simultaneous interpretation, and the court to hear it through a speaker during consecutive mode interpretation.⁽⁴⁹⁷⁾ The equipment included a second headset and microphone for counsel, so that attorney and client could communicate privately.⁽⁴⁹⁸⁾ Overall, the experiment was a success.⁽⁴⁹⁹⁾ The flaw was that the interpreter could only initiate communication with the court through the defendant, if there was a problem.⁽⁵⁰⁰⁾ "This problem, however, appears to be simple to remedy, by providing the interpreter with a means to control the public/private mode settings on the speaker phone."⁽⁵⁰¹⁾

Courts with the facilities to use telephonic interpretation should consider whether they should instead create their own list of "on-call" interpreters.⁽⁵⁰²⁾ State and federal courts could share lists of certified or qualified interpreters.⁽⁵⁰³⁾ This would ensure greater judicial control over the interpreting and the interpreter; thus, possibly increasing the quality and reducing the cost of interpreter services.

C. AT&T Language Line^® Services⁽⁵⁰⁴⁾ Telephonic Interpretation

At least eleven states are experimenting with telephonic court interpretation.⁽⁵⁰⁵⁾ This service is provided by AT&T Language Line^® Services.⁽⁵⁰⁶⁾ AT&T Language Line^® Services provides access to interpreters in "as many as 140 different languages, 7 days a week, 24 hours a day . . . within moments."⁽⁵⁰⁷⁾

LANGUAGE LINE SERVICES MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE, EXPRESS OR IMPLIED ABOUT THE INTERPRETER SERVICES, INCLUDING BUT NOT LIMITED TO THE AVAILABILITY, ACCURACY, COMPLETENESS, OR TIMELINESS OF ANY INTERPRETATION. . . . LANGUAGE LINE SERVICES SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER RECOGNIZES THAT OVER-THE-PHONE INTERPRETATION MAY NOT BE ENTIRELY ACCURATE IN ALL CASES.⁽⁵⁰⁸⁾

Despite its disclaimer of warranty, AT&T endeavors to provide interpreters who "are not only skilled in the language you need, but are also well versed in cultural nuances and the terminology of your business."⁽⁵⁰⁹⁾

AT&T requires the following "LIMITATION ON USE OF SERVICE" in the Interpreter Services Agreement to be signed by courts using AT&T Language Line^® Services:

Language Line Services' Interpreter Services should be limited to court proceedings of short duration wherein the conversation can be carefully managed so that only one participant speaks at a time and adequate telephone equipment is available. Examples of uses that may be appropriate include bail hearings, pre-trial arraignments, and hearings for restraining orders. Customer has also been fully advised and acknowledges that Language Line Services' interpreters are not certified as court interpreters nor trained to interpret in trial situations. Further, customer has been fully advised that over-the-phone interpretation is not appropriate for lengthy court proceedings or ones that involve a large number of participants or a jury.⁽⁵¹⁰⁾

To activate AT&T Language Line^® Services, one first must establish an account with AT&T Language Line^® Services,⁽⁵¹¹⁾ then call a toll-free "800" number to Monterey, California where an AT&T operator will connect the caller to an AT&T interpreter usually within a minute.⁽⁵¹²⁾ The only equipment that is required is a telephone.⁽⁵¹³⁾ "The cost of the initial hook-up is the same, regardless of the number of stations installed (e.g., 5 judges and 5 courtrooms cost the same as 1 judge and 1 courtroom)."⁽⁵¹⁴⁾ Courts find that using AT&T Language Line^® Services does not require high-technology equipment to compensate for courtroom acoustics.⁽⁵¹⁵⁾ Placing phones on counsel tables, the bench, and the witness stand, and then connecting them to a no-hands-headset is an inexpensive solution that works well to provide AT&T Language Line^® Services in most courtrooms.⁽⁵¹⁶⁾ However, absent high-technology telephonic equipment, AT&T Language Line^® Services interpretation is limited to the consecutive mode.⁽⁵¹⁷⁾

1.  Qualifications for AT&T Language Line^® Services Interpreters

AT&T interpreters must meet the American Council on the Teaching of Foreign Languages, Inc. (ACTFL) Proficiency guidelines.⁽⁵¹⁸⁾ AT&T uses an oral proficiency examination created by ACTFL to determine the individual's level of proficiency in a language other than English.⁽⁵¹⁹⁾ Interpreters are rated according to their qualifications as educated native speakers of English and the second language.⁽⁵²⁰⁾ Potential AT&T interpreters take a proficiency test over the telephone.⁽⁵²¹⁾ The examination takes between thirty and sixty minutes.⁽⁵²²⁾ AT&T interpreters range between "Advanced level" and "Superior level" using the ACTFL Proficiency Guidelines.⁽⁵²³⁾ Generally, AT&T Language Line^® Services interpreters are rated as "Superior" under the ACTFL Proficiency Guidelines in most languages spoken by large groups of United States residents.⁽⁵²⁴⁾ Occasionally, AT&T will hire an interpreter rated as "Advanced" or "Advanced-High" in a rare language.⁽⁵²⁵⁾

An "Advanced" speaker is "able to satisfy the requirements of everyday situations and routine school and work requirements."⁽⁵²⁶⁾ A "Superior" speaker is "able to speak the language with sufficient accuracy to participate effectively in most formal and informal conversations on practical, social, professional, and abstract topics."⁽⁵²⁷⁾ A superior speaker "[c]an support opinions and hypothesize, but may not be able to tailor language to audience or discuss in depth highly abstract or unfamiliar topics."⁽⁵²⁸⁾ "Usually[, however,] the Superior level speaker is only partially familiar with regional or other dialectical variants."⁽⁵²⁹⁾ The lack of familiarity with regional dialectical variants may be a major limitation in some interpretation contexts; for example, "pato" (literally: duck), can mean "forklift" in Peru, "homosexual" in Dominican Republic or Cuba, or "womanizer" in Panama.⁽⁵³⁰⁾ This may be a problem in court contexts where precision of language is critical.⁽⁵³¹⁾

2. Advantages of AT&T Language Line^® Services Interpreters

The five major advantages of telephonic interpretation over in-person interpretation are

(1) that AT&T Language Line^® Services interpreters in "as many as 140 languages are available 24 hours a day, everyday, at a moment's notice"; therefore, a defendant does not have to remain in jail for hours or days until an interpreter can be located;⁽⁵³²⁾

(2) that rarely, if ever, will the interpreter have a personal interest in the litigation or know the parties to the litigation;⁽⁵³³⁾

(3) that generally, AT&T Language Line^® Services are cheaper than in-person interpretation when used for short periods;⁽⁵³⁴⁾

(4) that a court is assured that the interpreter passed some language proficiency examination;⁽⁵³⁵⁾ and

(5) that if the court does not know which language the defendant is speaking, AT&T Language Line^® Services can quickly go through a number of possible languages in order to locate an interpreter.

Overall, based on published reports, court administrators and judges are pleased with AT&T Language Line^® Services.⁽⁵³⁶⁾

3. Disadvantages of AT&T Language Line^® Services Interpreters

The major disadvantages of AT&T Language Line^® Services are that

(1) the knowledge and interpretation skills of interpreters may not meet requirements of states with interpreter certification examinations;

(2) it does not allow for private attorney-client communications;

(3) the quality of the equipment can have a dramatic impact on how well the judge and the interpreter can hear each other;

(4) it is limited to consecutive mode which increases the length of the proceedings;

(5) it has a high per-minute cost; and

(6) it is unable to translate documents.

4. Suggestions for Working with AT&T Language Line^® Services Interpreters

Courts should experiment with telephonic interpretation prior to implementing such a program for regular use. Before accepting the services of an AT&T interpreter, the court should

(1) inform the court interpreter that if he or she is accepted as an interpreter, he or she is under the jurisdiction of the court and could be, if necessary, compelled to testify in person;⁽⁵³⁷⁾

(2) voir dire⁽⁵³⁸⁾ and swear⁽⁵³⁹⁾ the interpreter on the record;

(3) impress upon the interpreter key principles of court interpretation; for example, use consecutive mode for interpretation and never use the summary mode;

(4) impress upon the interpreter the need to stop the proceeding if necessary. For example, the interpreter should be instructed to stop the proceeding if the interpreter is uncertain of a word, if the witness or party is speaking too quickly, if the interpreter is tired, or if, for any other reason, the interpreter cannot completely and accurately interpret the proceedings;

(5) to always refer to himself or herself as "the interpreter";

(6) to use good quality telephone equipment; and

(7) if there are special rules or privileges involved, t