Se Habla Everything: The Right to an Impartial, Qualified Interpreter

• Resources for Learning About Court Interpreter Issues

By Francisco Araiza

A court reporter's verbatim transcript has little value if it contains an unqualified interpreter's false account of the words of a non-English-speaking person. Read why and how courts and attorneys should locate and use qualified interpreters.

Wisconsin has yet to join the federal system and other states in requiring certification before language interpreters are allowed to appear in court. Even so, existing law requires courts to use competent interpreters. This overview explores the need for impartial and qualified language interpreters in state courts, the laws that have elevated that necessity to a right, the threshold that must be crossed before the right kicks in, the qualifications courts should require of prospective interpreters, and the procedure to obtain and to use a court interpreter.

The need for impartial and qualified interpreters

"... for no situation is more full of anguish than that of an innocent accused who cannot understand what is being testified against him." ¹

With 13 percent of the United States population speaking a language other than English, it is no surprise that many non-English-speaking witnesses, victims and defendants appear daily before city, county and federal courts nationwide. Citing both time and financial constraints, courts frequently allow a relative or friend of the non-English-speaking party or a bystander to interpret the proceedings. At times, court staff such as clerks or bailiffs, or even witnesses in the case before the court, have acted as interpreters for the non-English-speaking party.

However well-intentioned the inexperienced volunteer interpreter, and regardless of how well they may speak the second language, it takes much more than the knowledge of two languages to interpret accurately. Interpreters must be able to interpret simultaneously in a court of law while attorneys are speaking at lawyer speed, speak the party's dialect within the second language, and use words conveying the tone and meaning contained in the phrase of the original speaker. In some instances, what was said may be less important than how it was said. The words "be quiet" and "shut up" may have the same meaning, but they convey it on different levels. There are many synonyms within the English language, as with any language.

When a document states the words "appoint an attorney," the well-intentioned but inadequately trained interpreter may convey the words "point to an attorney," which occurred recently in a case before the Wisconsin Supreme Court. ² Certified or qualified interpreters are trained to find the terms that best convey the original message.

More troubling, there are cases where the interpreter is not only unqualified to interpret, but where conflicts of interest might compromise the interpreter's impartiality. For instance, in a Milwaukee circuit court an advocate for battered women was assigned to assist the victim in a domestic violence case. The same advocate then was sworn in to interpret during the victim's impact statement at her boyfriend's sentencing hearing. The victim wanted the court to be lenient with her boyfriend; they had reconciled. We cannot be sure that the advocate-for-battered-women-turned-interpreter had the same feelings regarding the appropriate sentence.

The right to an impartial and qualified interpreter

"... as a matter of simple humaneness." ³

Even before the Wisconsin Legislature enacted the statute providing interpreters, the supreme court held that, as a matter of fairness and sound judicial administration, a defendant had a right to an interpreter if such a defendant did "not understand English sufficiently to confer with his attorney or reasonably understand testimony given in English at his preliminary hearing or trial." ⁴

The Legislature codified the supreme court decision concerning interpreters for persons with language difficulties together with the statute covering interpreters for persons with hearing or speaking impairments. Section 885.37 of the Wisconsin Statutes makes qualified interpreters available for persons who have a language difficulty sufficient to prevent them from communicating with their attorney, reasonably understanding the English testimony or reasonably being understood in English. ⁵ The statute applies in actions where:

1) the person is charged with a crime;

2) the person is a child or parent subject to chapter 48, the Children's Code, or to chapter 938, the Juvenile Justice Code;

3) the person is subject to chapter 51, the Mental Health Act, or to chapter 55, the Protective Service System, or

4) the person is a witness in one of these proceedings.

The statute allows courts to authorize the use of interpreters in actions or proceedings other than those mentioned above. The extent to which an indigent defendant is entitled to a court-appointed interpreter under constitutional due process and under the statutory right to a full and fair hearing in civil actions, such as takings by eminent domain, has not been fully litigated.

The right to an interpreter in criminal cases derives from the Fifth, Sixth and 14th amendments to the U.S. Constitution; specifically, the due process clauses of the Fifth and 14th amendments, and the Sixth Amendment's confrontation clause (right to cross-examine witnesses and right to be "present" in court) and right to notice of the charges and assistance of counsel.

The Second Circuit Court of Appeals has held that failure to provide an interpreter whenever appropriate "inevitably hamper[s] the capacity of [the defendant's] counsel to conduct effective cross-examination." The court considered the presence of an interpreter to be integral to the right to be present at one's own trial, explaining that for the right to be present to have any meaning, a criminal defendant must possess "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding." ⁶

Honoring the Constitution's requirement that defendants be informed of the nature and cause of the accusations against them, a federal judge for the Eastern District of New York required the prosecution to provide free translations of indictments and other key documents in a complex case. ⁷ The case involved 18 non-English-speaking defendants charged in several related cases alleging narcotics and money-laundering crimes. The court ordered the government to provide a translation of the indictment and relevant portions of the statutes mentioned in it, a translation of the written plea agreements, the presentence reports and any other key documents the court deemed necessary during the case. The court noted that in the age of computers and boilerplate indictments the cost to provide the translated indictment and the statutes would be minimal. Balancing the prosecution's interest in economically administering criminal law and the defendant's constitutional rights, the court placed more weight on the constitutional requirement.

Determining who gets an interpreter

"Yet how high must the language barrier rise before a defendant has a right to an interpreter?" ⁸

The right to an interpreter does not attach automatically to every foreign-born defendant, nor to every witness with a seemingly unpronounceable surname. Instead, the U.S. Supreme Court has given trial courts wide discretion in determining when the use of an interpreter is appropriate. ⁹

In a similar fashion to concerns regarding mental competency and requests for competency hearings, attorneys can provide notice of the language barrier to the court orally on the record. They also may send written notice in advance of the court date, following up with a phone call to the clerk to ensure an interpreter will be available on the next court date.

Due process considerations dictate that whenever an attorney advises a court that a defendant has a significant difficulty in understanding the English language, the court must:

1) make it unmistakably clear to the defendant that she or he has a right to a court-appointed interpreter if the court determines that one is needed; and,

2) determine whether such language difficulty would interfere with the defendant's ability to comprehend the proceedings and to communicate with counsel.

The factors the trial court may consider in making its determination include, among others: the level of the defendant's understanding; the defendant's ability to speak English; the complexity of the issues and testimony presented during the trial; and the language ability of the defendant's counsel.

It is important to remember that only defendants themselves can waive the presence of an interpreter.¹⁰ Such waivers should be done on the record and in very limited circumstances, for example, during a scheduling conference.

In any event, bilingual attorneys should not act simultaneously as advocate and as interpreter. Logical reasons for this abound: The attorney may miss something being said in court because he or she is busy interpreting for the defendant; legal malpractice insurance may not cover the added interpreter function; conflict of interest issues may arise if the attorney is not completely impartial to the information given to or by the defendant or if the defendant responds with confrontational words that the attorney would prefer the court did not hear.

After determining that an interpreter is necessary, the court must inform the parties of their right to have a qualified interpreter, and if they cannot afford one, of their right to have an interpreter provided at the public's expense. The Director of State Courts pays for in-court interpreters; in criminal cases, the State Public Defender pays for interpreters appointed for defense counsel's out-of court use.

Locating an interpreter

Attorneys should inform the clerk of the assigned court as soon as they become aware of the language difficulty, preferably before the court date so the clerk can find an interpreter. Especially in cases involving a second language not frequently encountered in the particular court, failure to give enough advance notice to the clerk probably will result in a long wait on the court date, or an adjournment.

Some attorneys decide to obtain an interpreter themselves. The statute does not prohibit this, although the opposing party presumably should be permitted to voir dire the interpreter to assure competence and impartiality.

If no qualified interpreter is available to attend in person and the court proceeding is a scheduling conference, a motion to adjourn or some similar uncomplicated short appearance, the court may conduct the hearing with an interpreter present via telephone.¹¹ Sometimes judges and attorneys have to decide between leaving a person in custody for the following day when an interpreter will be available in person, or agreeing to the short telephonic conference.

The long-distance carrier AT&T provides interpreters by calling its language line and asking for an interpreter for the specific language needed. ¹² It provides services for a fee in 140 languages. AT&T's language lines are (800) 628-8486 and (800) 752-6096

Determining who may interpret

The relevant Wisconsin statute dictates that a "qualified" interpreter will be appointed once a court determines that a person needs an interpreter and is unable to afford one. The Second Circuit Court of Appeals referred to a "competent" interpreter when it explained the right to an interpreter.¹³

Determining whether an interpreter is "qualified" varies from court to court. Some states and the federal courts have instituted certification processes to qualify prospective interpreters. Those certifications seek to ensure that the non-English-speaking defendants hear the court proceedings with the same degree of accuracy and clarity of language as the English-speaking defendants. Certification requirements may include a combination of education and proficiency testing. The federal certification process is the most thorough and well-regarded. It consists of a two-day examination covering every aspect of translating and simultaneous and consecutive interpreting.

In Wisconsin, however, a certification process has yet to be established. Meanwhile, individual judges determine whether to allow a person to act as an interpreter based upon the type of proceeding, complexity of the case, the experience and education of the prospective interpreter, the defense counsel's ability to speak the defendant's native language, and the availability of experienced court interpreters in the area.

Until such a time when a certification program is in place, attorneys should voir dire prospective interpreters to qualify them as experts. Questions regarding education, experience, biases and knowledge of legal vocabulary in the second language are relevant.

Regrettably, in many cases in Wisconsin, relatives who speak only slightly better English than the defendant, witnesses to the defendant's case, or court employees often are asked to interpret without any inquiry by either the judge or attorney concerning their language proficiency and their interpreting ability or training.

Courtroom stories throughout Wisconsin illustrate the hazards of using bystanders as interpreters. An elderly woman was asked to interpret. She entered the courtroom carrying a foreign language dictionary, saying, "Oh boy, this is going to be fun; I haven't spoken Spanish since high school." On a different case, the social worker assigned to a child abuse case interpreted the testimony for a witness in court. The witness said a word in Spanish which the social worker interpreted to the court as "'raped' the child." The witness on the stand, understanding just enough English to know what the word rape meant, jumped up and shouted at the interpreter and at the judge, saying, "No, no, not raped. I said hurt, not raped." The Spanish word later was found to mean "hurt," "damage" or "injure." The cause of the mistake is irrelevant; the fact that mistakes of such magnitude may be occurring and going unnoticed in other cases is disturbing.

A common mistake even some experienced interpreters make is to "correct" the testimony of the person on the stand. The importance of a literal interpretation is shown in Santiago motion hearings.¹⁴ In such motions, one interpreter interprets for the defendant, while a second interpreter interprets for the witness. The witness usually is a police officer testifying how that officer gave the Miranda ¹⁵ warnings to the defendant in the non-English language. The witness's interpreter, knowing the Miranda warnings by heart, sometimes tends to recite them verbatim from the standard English form, regardless of how the testifying police officer recites them in the foreign language.

Such paraphrasing defeats the purpose of the entire hearing, which is to find out whether the words used by the police officer to deliver the Miranda warnings in the non-English language fully conveyed the same information as the Miranda warnings in English.¹⁶

Choosing an interpreter should be approached with the same care that courts take to obtain qualified, certified court reporters. Court interpreters and court reporters provide a very similar service to the court and to the record. Whether the task is translating or transcribing, courts must develop an accurate record. To date, the author is not aware of a single court where a bailiff, a bystander or a clerk trained in shorthand was asked to act as a court reporter.

Court interpreters should have the equivalent of a college education in translation and interpretation and read, write and speak both English and the second language with native-like fluency. They need to demonstrate proficiency in both consecutive interpreting and simultaneous interpreting. In consecutive interpreting, the speaker and the interpreter speak one at a time; the speaker says a few sentences and pauses while the interpretation takes place. It takes more training and talent to conduct simultaneous interpretation, that is, where the original speaker does not pause and the interpreter listens to the speaker and interprets into the second language at the same time.

Interpreting may not be an exact science, but certified federal interpreters have shown that, with the appropriate training, it is possible to achieve almost scientific accuracy. The interpreter (filter) used to decipher the message should be as impartial, efficient and machine-like as possible, like an electronic instrument that repeats the words verbatim, using the same tone, the same hesitations and similar emotions.

Court interpreters should not summarize, paraphrase or explain. Every word spoken by the interpreter should be a verbatim interpretation of the words spoken in the original language, keeping an accurate record - just like a court reporter.

How to use an interpreter in court

"...to be treated at trial as a comprehending individual rather than as an insensate object."¹⁷

The rules to communicate with non-English-speaking persons do not differ significantly from those used to communicate with a deaf person.¹⁸

Once the interpreter is in place during the court proceeding, the judge or an attorney should speak to the non-English speaker, not to the interpreter. The analogy between the court interpreter and the court reporter continues; there are very few situations when the speech is directed to the reporter or to the interpreter. If the non-English-speaker has a question regarding the proceedings, the question should be directed to the appropriate person in the courtroom. By the number and the type of questions asked, the court will better ascertain whether the non-English speaker fully understands the proceedings.

It is important to remember that the communications between clients and interpreters are privileged only when the attorney and the client are involved in an attorney-client confidential communication and the interpreter is present to facilitate such communication. Conversations that occur between the interpreter and the client outside the attorney presence may not qualify for the privilege. Under some scenarios, the interpreter conceivably could be called to testify just as any other witness in the case.

Conclusion

As the country continues its centuries-old debate over immigration policy and "English only" laws, the right to have qualified interpreters in our courts has been decided mainly under arguments about due process and fundamental issues of fairness.

Today, courts should ensure interpreters' competency and impartiality with the same care used to obtain qualified court reporters. After all, what is the value of a court reporter's verbatim transcript, if it contains an unqualified interpreter's false account of the words of the non-English-speaking person?

Courts are required to provide a full opportunity for non-English-speaking defendants to present their cases with the same clarity as their English-speaking counterparts. Ideally, non-English-speaking defendants should be able to hear the testimony, consult with their attorneys - and thereby cross-examine - with the same speed and effectiveness as if they understood the proceedings in English. The First Circuit Court of Appeals summarized the overall policy consideration regarding court interpreters when it stated, "No defendant should face the Kafkaesque specter of an incomprehensible ritual which may terminate in punishment." ¹⁹

Endnotes

¹ 5 John W. Wigmore, Evidence, 1393, at 143 (Chadbourn Ref. ed. 1974).

² State v. Santiago, 206 Wis. 2d 3, 556 N.W.2d 687 (1996).

³ United States ex rel. Negron v. New York, 434 F.2d 386, 390 (2nd Cir. 1970).

⁴ State v. Neave, 117 Wis. 2d 359, 344 N.W.2d 181 (1984), overruled on other grounds by State v. Koch, 175 Wis. 2d 684, 693-94, 499 N.W.2d 152, cert. denied, 510 U.S. 880 (1993).

⁵ Wis. Stat. §885.37 (1995-96). Practitioners appearing in federal court should refer to The Court Interpreters Act of 1978, 28 U.S.C. 1827.

⁶ Negron, at 389 (quoting Dusky v. United States, 362 U.S. 402 (1962)).

⁷ United States v. Quesada Mosquera, 816 F. Supp. 168 (E.D.N.Y. 1993).

⁸ United States v. Carrion, 488 F.2d 12, 14 (1st Cir. 1973); cert. denied, 416 U.S. 907 (1974).

⁹ Perovich v. United States, 205 U.S. 86 (1907).

¹⁰ Neave, at 373.

¹¹ Wis. Stat. §967.09. Interpretation by telephone or live audiovisual means permitted in any criminal proceeding other than trial.

¹² The charge is between $4.15 and $7.25 a minute. The billing usually is done through credit cards, but it also can be done by opening an account in advance of the court date when the interpreter is needed.

¹³ Negron, at 391.

¹⁴ Santiago, note 2.

¹⁵ Miranda v. Arizona, 384 U.S. 436 (1966).

¹⁶ California v. Prysock, 453 U.S. 355, 359-60 (1981).

¹⁷ Neave, at 373.

¹⁸ The article, Communicating with Your Deaf Client, by John V. McCoy, 65 Wis. Law. at 16 (Nov. 1992), gives an excellent overview on using an interpreter, interpreter confidentiality and locating an interpreter for hearing impaired persons. One difference to consider is that the Americans with Disabilities Act does not cover language impairment while it does cover speech and hearing impairments.

¹⁹ Carrion, at 14.

Wisconsin Lawyer