Introduction to Court Interpreting 2016028738, 9781138916487, 9781138916517, 9781315689586

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Introduction to Court Interpreting

Encompassing the entire scope of the court interpreting profession, Introduction to Court Interpreting is the first course book for court interpreter training that is not oriented toward the judicial system of a particular country, but can be used in any country for training interpreters in any language combination. This second edition has been thoroughly revised to reflect the latest research on theory and practice and different pedagogical approaches in the field. Starting with the history of the current practice of court interpreting both inside and outside of the courtroom, a further nine chapters cover the key topics from comparative law to ethics and standards of practice, to professional and job market issues. Extensive practical exercises and suggestions for further reading are included with each chapter. New sections on remote interpreting and police interpreting, as well as new role-playing scenarios (eg. the Postville case of 2008), help to ensure that this remains the essential introductory textbook for all those working in the areas of Translation and Interpreting Studies. It will also be of interest to students and practitioners of law. Holly Mikkelson is a Professor of Professional Practice in the Graduate School of Translation and Interpretation at the Middlebury Institute of International Studies at Monterey, USA. A certified Spanish court interpreter who has worked in state and federal courts in the United States, her training manuals, The Interpreter’s Edge series, are used in court interpreting programmes throughout the world. She is also the co-editor of The Routledge Handbook of Interpreting (2015).

Translation Practices Explained Series Editor: Kelly Washbourne

Translation Practices Explained is a series of coursebooks designed to help selflearners and students on translation and interpreting courses. Each volume focuses on a specific aspect of professional translation practice, usually corresponding to courses available in translator-training institutions. The authors are practising translators or translator trainers. Although specialists, they explain their professional insights in a manner accessible to the wider learning public. Each volume includes activities and exercises designed to help learners consolidate their knowledge, while updated reading lists and website addresses will also help individual learners gain further insight into the realities of professional practice. Titles in the series: An Introduction to Audio Description Louise Fryer Translating Children’s Literature Gillian Lathey Localizing Apps Johann Roturier User-Centered Translation Tytti Suojanen, Kaisa Koskinen, Tiina Tuominen Translating for the European Union Institutions 2e Emma Wagner, Svend Bech, Jesús M. Martínez

Revising and Editing for Translators 3e Brian Mossop Audiovisual Translation Frederic Chaume Scientific and Technical Translation Explained Jody Byrne Translation-Driven Corpora Federico Zanettin Medical Translation Step by Step Vicent Montalt, Maria González-Davies

For more information on any of these and other titles, or to order, please go to www.routledge.com/Translation-Practices-Explained/book-series/TPE Additional resources for Translation and Interpreting Studies are available on the Routledge Translation Studies Portal: http://cw.routledge.com/textbooks/ translationstudies

Introduction to Court Interpreting Second Edition

YORK YORK

Holly Mikkelson

~~o~;J~n~~~up

LONDON LONDON LONDON

LONDON AND NEW YORK

Second edition published 2017 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2017 Holly Mikkelson The right of Holly Mikkelson to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Every effort has been made to contact copyright-holders. Please advise the publisher of any errors or omissions, and these will be corrected in subsequent editions. First edition published by St Jerome Publishing 2000 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Names: Mikkelson, Holly, author. Title: An introduction to court interpreting / by Holly Mikkelson. Description: Second Edition. | Abingdon, Oxon [UK] ; New York : Routledge, 2017. | Series: Translation practices explained | Includes bibliographical references and index. Identifiers: LCCN 2016028738 | ISBN 9781138916487 (hardback) | ISBN 9781138916517 (pbk.) | ISBN 9781315689586 (ebook) Subjects: LCSH: Court interpreting and translating. | Conduct of court proceedings. | Law--Translating. Classification: LCC K2155 .M55 2017 | DDC 347/.016--dc23 LC record available at https://lccn.loc.gov/2016028738 ISBN: 978-1-138-91648-7 (hbk) ISBN: 978-1-138-91651-7 (pbk) ISBN: 978-1-3156-8958-6 (ebk) Typeset in Times New Roman by Taylor & Francis Books

Dedicated to my parents, Vernon Edward Mikkelson, MD December 9, 1922 – March 23, 2000 and Mary Binder Mikkelson, February 17, 1923 – February 11, 2016

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Contents

List of figures Acknowledgement 1 Introduction

viii ix 1

2 Court interpreting laws and regulations

13

3 Legal traditions of the world

28

4 Criminal and civil procedure

41

5 Interpreting for law enforcement

58

6 The code of ethics

75

7 Interpreting modes and strategies

97

8 Remote interpreting

114

9 Specialized topics, resources and references

126

10 Professional issues and continuing education

138

Appendix A Appendix B Index

150 153 155

Figures

4.1 4.2 4.3 8.1 8.2 8.3

U.S. courtroom South African courtroom Japanese courtroom Judge in court, interpreter in central office, defendant in jail Judge in court, interpreter at jail with defendant Judge and interpreter in court, defendant in jail

54 55 56 115 115 115

Acknowledgement

I would like to acknowledge the colleagues around the world who have so generously contributed to my understanding of their countries’ judicial systems and court interpreting practices. I will not name them, for there are so many that I fear I may inadvertently overlook someone. I am particularly grateful to my colleagues in Argentina, Australia, Austria, Germany, Japan, South Africa, Spain, and the United Kingdom, who kindly answered my many questions and in some cases even took me to observe court proceedings. Finally, I would like to thank my husband, Jim Willis, for his editing and illustrating assistance, humor and patience. Holly Mikkelson September 2016

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1

Introduction

Scope and objective The purpose of this book is to introduce you to the profession of court interpreting. Like many interpreting specialties, this field is very complex and requires familiarity with a number of subjects, including law, translation and interpreting theory, linguistics, intercultural communication, anthropology, and psychology. It would be impossible to cover all such subjects in depth. The intent of this book is, rather, to present an overview of the field and alert teachers and students to avenues of further inquiry. Court interpreters work not only in courts of law but also in law offices, law enforcement agencies, jails and prisons, and other public agencies associated with the judiciary. They may be known by a variety of names, including legal interpreters, judiciary interpreters, and forensic interpreters. In this book court interpreter/interpreting will be the primary term, although others are used as the occasion requires. All of the settings mentioned above will be addressed throughout the book. It is worth noting that community interpreting or public service interpreting (more or less equivalent terms that are used in different parts of the world) usually encompasses legal interpreting as one of its various settings. A word about pronouns: To avoid cumbersome use of “he/she” or “his/her” and the ungrammatical use of “they/their,” I will use the feminine pronoun for interpreters throughout this book, unless the context dictates otherwise, since the majority of interpreters are women. For simplicity’s sake, I will use the masculine pronoun for all other general references to individuals mentioned in the book. This is strictly a pragmatic decision and in no way reflects the actual distribution of roles between males and females. Finally, I will use the term “limited language proficient” (LLP) to refer to those who are not fluent in the language used in court and therefore need the services of an interpreter when they have contact with the legal system. Also for the sake of simplicity, I will minimize the use of academic jargon throughout the book to make it easier to read. The references listed at the end of each chapter, particularly those billed as recommended reading, contain further information on the subjects covered in that chapter.

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Role of the court interpreter According to Morris (2010, p. 35), “interpreted legal proceedings and concomitantly those who interpret at them are a part of every modern country’s judicial landscape, and of the increasing number of international courts and tribunals.” It is generally acknowledged that the role of the interpreter in the judicial setting is to make communication possible despite language barriers that exist between litigants and court personnel. It is a widely recognized principle of law that anyone accused of a crime is entitled to be informed of the charges and allowed to put on a defense. If that person does not speak the language of the court system in which he is being tried, in most countries he has a right to an interpreter. The right to an interpreter in non-criminal cases is not as widely recognized. In any event, the interpreter is viewed as a guarantor of language rights as they are defined in international conventions such as the Universal Declaration of Human Rights of 1948 and the International Covenant on Civil and Political Rights of 1996 (González et al., 2012). In the United States, these rights have been expanded to encompass all aspects of what is known as meaningful language access, defined as “the ability to use services and benefits comparable to those enjoyed by members of the mainstream cultures. It is achieved by eliminating communication barriers and ensuring that the client or potential client can communicate effectively” (Minnesota Department of Human Services, 2015). The interpreter is also considered an equalizer, someone who will put litigants who do not speak the language of the proceedings on the same footing as those who do (Administrative Office of the Courts, 2008). Similarly, in the context of the European Union, individuals who access public services have a right to exercise their language preference (Arzoz, 2008). Despite the almost universal right to an interpreter in criminal cases, most countries do not have laws specifying who is qualified to act as an interpreter in court proceedings. In places where multilingualism is very common among the educated classes, traditionally an attempt would be made to find a lawyer who spoke a foreign litigant’s language. Thus, in the past, a German tourist involved in an auto accident in Denmark would be assigned a German-speaking lawyer for court appearances, and the lawyer would be expected to keep the client apprised of what was said in Danish in the courtroom. Those days are long gone, fortunately, at least in Europe. Today a greater diversity of languages is spoken by foreign visitors and immigrants, and more explicit provisions are made for the rights of linguistic minorities. For example, an Albanian-speaking refugee accused of murder in Denmark would not be very likely to find a Danish lawyer who spoke his language, and, in any case, would need more than an occasional summary interpretation to follow the proceedings and participate actively in his own defense. Recently enacted regulations and standards, to be discussed later in this chapter and elsewhere in the book, have strengthened the requirements for interpreting in legal settings. As more and more languages come in contact in our ever-shrinking world, and as

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prosecution and litigation become increasingly complex, the importance of competent interpreting services is also becoming too obvious to ignore. What constitutes competent interpreting in the legal sphere is not a simple question. Recent writings on interpreting theory indicate that any sort of interpreting is far more involved than merely transferring words from source language (the language of the original message) to target language (the language into which the message is interpreted). The linguistic aspect of the task alone is a complicated process of decoding, abstracting, and encoding; and the cultural and social aspects of communication must also be considered. For the court interpreter, the task is rendered even more difficult by the gap between different legal systems and the hidden agendas often associated with lawsuits. For example, when a judge asks a Hmong refugee whether he is willing to give up his right to a speedy jury trial, the challenge for the interpreter is to convey the concepts of “rights” and “jury trial” to a person from a remote mountain region untouched by the trappings of a modern justice system, and to do so efficiently in order to elicit a meaningful response from the defendant and enable the judge to get through his busy calendar. Judicial systems throughout the world are often criticized for being inaccessible to the citizens they are designed to serve. Even in countries where public proceedings are the norm, laypersons who observe or participate in court cases are frequently confused and mystified by the language and behavior of legal professionals. In many societies, lawyers are known for their tendency to obfuscate and manipulate by using arcane language. It is often noted that the court interpreter’s role is to level the playing field by overcoming the language barrier, not to put the limited language proficient (LLP) person who receives the interpreting at an advantage over other litigants. In other words, the interpreter is not there to make sure the LLP understands, but merely to give him the same chance anyone else in his place would have if he spoke the language of the court. Thus, a judge’s admonition should sound just as intelligible – or unintelligible – to the foreigner listening to the interpretation as it does to a layperson who speaks the official language of the court. What this means is that court interpreters must master not only the techniques of interpreting and a wide range of registers in all their working languages, but also the complexities of the different legal systems and the “legalese” employed by judges and attorneys in those languages. Interpreters must also become adept at maintaining neutrality as they navigate between the Scylla and Charybdis of defense and prosecution, especially in adversarial judicial systems. Standards for what must be interpreted vary from one country to the next. In the United States, for example, interpreters are expected to interpret simultaneously every word that is uttered in the courtroom, no matter who the speaker is, when a non-English-speaking defendant’s case is being heard (this would include jokes and asides, comments about other cases, and the like). In contrast, in many countries, the interpreter is not expected or even allowed to provide a simultaneous interpretation of the proceedings, but interprets

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summaries of evidence consecutively. The interpreter may be prohibited from sitting anywhere near the defendant, making simultaneous interpreting impossible without equipment. In some courts, the interpreter merely provides a consecutive interpretation of the judge’s summary of the proceedings after he has concluded. Often there are no guidelines for interpreters, who are then left to determine for themselves what the defendant or witness should hear. In countries where defense counsel are allowed to act as interpreters, it is obvious that the defendant will receive only a summary interpretation at best. There are also different opinions regarding how far the interpreter should go in bridging cultural and social gaps in the court environment. At one end of the spectrum are those who advocate strict adherence to the linguistic elements of the message and omission of nonverbal elements such as hand gestures, facial expressions, and tone of voice. In this school of thought, interpreters are barred from explaining, elaborating, or clarifying. Particularly in the adversarial atmosphere of common-law jurisdictions, it is argued that efforts by an interpreter to represent or explain cultural aspects of a message would “tamper with a witness’s credibility” and affect the opinion the triers of fact may have of the speaker (González et al., 2012, p. 1103). At the other end of the spectrum are those who contend that the cultural gaps are sometimes so broad that focusing exclusively on the linguistic aspects fails to convey meaningful information and serves no purpose. In the case of the Hmong refugee cited above, proponents of the first approach would have the interpreter use periphrasis or a gloss to convey the idea of “right” as accurately as possible in the target language (perhaps a phrase like “privileges to which you are entitled”) and “jury trial” (“members of the community deciding if you committed the crime”) and leave it up to defense counsel to provide further explanation, or to the defendant to request an explanation. The second school of thought would favor intervention by the interpreter to give a brief explanation of the legal system in language the defendant could understand prior to interpreting the judge’s statement. When there is a tremendous disparity in the level of sophistication of, on the one hand, legal professionals, and on the other hand, laypersons (many of whom are illiterate and have no legal counsel), the “universal ethical and professional principles [of neutrality and impartiality] are a mere ideal situation that may be impossible to achieve” (Moeketsi, 1999, p. 12). Most interpreters take a position somewhere between these two extremes, and every case must be judged according to the circumstances. According to Tipton and Furmanek (2016, p. 69), “approaching interpreter mediation from a perspective of shared responsibility is gaining ground” (emphasis in original). A good overview of the different models of interpreting, meaning the views of what the court interpreter does and should do, can be found in Lebese (2015). These issues are examined in more detail in Chapters 4 and 6; suffice it to say that as a court interpreter you must be aware of the impact of culture on language, and must exercise good judgment in reflecting that impact in your interpreting.

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5

History of court interpreting No one knows when interpreting began, but it surely dates back further than recorded history. It is safe to assume that the practice of court interpreting is almost as old as the practice of law. In relatively modern history, Sarmiento Pérez (2011) refers to interpreters mediating between Europeans and African indigenous groups in legal contexts, among others, in the fourteenth century. Giambruno (2008) discusses court interpreting in Spanish colonies in the Americas, when as early as the 1500s there were laws stipulating the use of interpreters. Colin and Morris (1996) cite interpreted trials in 1682 and 1820 that were landmarks in English jurisprudence. The first, Borosky and others, was a murder trial involving several languages. Colin and Morris note that “when it came to deciding about who was entitled to an interpreter, class – not linguistic need – was the decisive factor. The person who speaks the best English is the aristocrat – and he gets the best treatment from the court” (p. 177). The second case cited by Colin and Morris, the 1820 adultery trial of Queen Caroline, provided examples of interpreters not only rendering the linguistic content of witness statements, but also explaining cultural differences. Perhaps the most famous interpreted trials in history were those of accused Nazi war criminals at Nuremberg in 1945–46. This event is regarded as a watershed for the interpreting profession because it was the first instance of the use of equipment to provide simultaneous interpretation. The Charter of the International Military Tribunal provided, in Articles 16 and 25, that to assure the defendants of a fair trial, the proceedings had to be translated into a language they understood. In addition, the members of the International Military Tribunal represented all the countries of the victorious Allies, and did not share a common language. And finally, as Gaiba (1998, p. 33) points out, “The Nuremberg Trial was one of the first major international media events, and there was the need to keep the international public constantly informed.” For all these reasons, it was decided that the only way to conduct these multilingual proceedings efficiently was by using simultaneous interpretation. Recruiting qualified interpreters in the four working languages of the trial was a monumental task. An initial screening was conducted to identify individuals with fluency in two languages in a wide variety of subjects; those who passed the screening were asked to interpret in a mock trial. Because no one had ever been trained in simultaneous interpreting, few candidates passed this portion of the test. Gaiba (1998) states: Given the stressful conditions of the job, interpreters had to have selfcomposure under pressure and the ability to concentrate in difficult situations. The job required the mental agility to hear and speak at the same time, and to adapt instantaneously to the stimulus of the source language. This means that interpreters had to be able to quickly find an alternative if the best translation did not come to mind, as they were not

6

Introduction supposed to stutter or stop. They had to be able to make decisions quickly and accurately. The job also required great mental and physical efforts because of the need to interpret both speedily and accurately, and to adapt to the speed of the speaker. Finally, interpreters were required to have a good voice and clear enunciation, so that it would be easy to listen to them for hours at a time. (p. 47)

Only five percent of the people tested, including experienced consecutive interpreters, were able to perform adequately (Gaiba, 1998, p. 48). According to Baigorri-Jalón (2014), The selection process was based more on the intuition of the “recruiters” than on a thorough testing system. Not only did such a system not exist, considering that the mode of interpreting was new, but there was also no time to develop one because of the urgency of the matter. (p. 219) The individuals selected in this screening process were then given several weeks of training, which consisted of interpreting mock trials and receiving feedback on their performance. The training program continued throughout the trial as new candidates were identified. There was a high turnover among interpreters in Nuremberg because of the horrifying nature of the evidence and the stress of interpreting simultaneously. As Baigorri-Jalón points out, “It was not unusual for an interpreter to meet all the prerequisites and then go down in flames when it came time to provide live interpreting” (p. 219). Nevertheless, many went on to pursue careers as international conference interpreters. These accounts of historic trials show that although many talented and competent individuals have provided interpreting services in courts of law over the centuries, court interpreting was never recognized as a full-time occupation. Only recently has the profession been practiced by individuals who have chosen court interpreting as a career and received specialized training in it. Even today, many veteran court interpreters began working in the field by accident, because they happened to speak a certain language that was required for a court case, and they learned the techniques of interpreting “by the seat of their pants.” As standards rise and consumers of interpreting services become more sophisticated, however, newcomers to the profession find that formal training is necessary to enter the field. The first regulation of the quality of interpretation in the judiciary began in the late 1970s. Sweden was among the first European nations to regulate the practice of interpreting, introducing a state authorization exam in 1976 (Ozolins, 1998). In the United States, the Federal Court Interpreters Act of 1978 required that Spanish interpreters working in the federal courts demonstrate proficiency by passing a certification exam (González et al., 2012). At the same time, the

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Registry of Interpreters for the Deaf (RID) developed a legal skills certificate as a complement to the general certification exam it had been administering since 1972. Australia began requiring a proficiency exam for interpreters in 1978, Canada in the early 1980s. Several individual states in the U.S. followed the lead of the federal courts and adopted certification requirements for court interpreters. California, for example, began testing interpreters in 1979, followed by New York (1980), New Mexico (1985), and New Jersey (1987). This trend accelerated in 1995 when the National Center for State Courts founded a consortium of states to pool resources for interpreter training and testing.

Recent history In many other parts of the world, although there has been increasing awareness of the need to ensure the quality of interpreting services in the judiciary, legislatures have not taken action to impose standards; instead, the selection of interpreters has been left to the courts’ discretion. In the European Union, although the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms provided for the use of interpreters in criminal cases, it became evident that standards for fulfilling the rights of defendants who do not speak the language of the court system needed to be strengthened. Accordingly, on October 20, 2010, the European Parliament and the Council adopted Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings. The directive requires all member states to enact national legislation clarifying the right to translating and interpreting services for criminal defendants and providing explicit guarantees (Council of Europe, 2010, p. 1). In countries with longer histories of providing interpreters for court proceedings, though existing laws and regulations already required interpreters prior to the Directive, weaknesses remain (Hertog, 2015). In the United Kingdom, for example, the police and the courts are required to employ interpreters listed on the National Register of Public Service Interpreters or other similar lists, but enforcement is inconsistent (Colin and Morris, 1996; Corsellis, 2008 and 2015; Tybulewicz, 1997). Though obtaining the Diploma in Public Service Interpreting (DPSI) requires successful completion of a test or proof of a degree in translation and interpretation, interpreters who do not appear on the register are still being used. Moreover, even interpreters who are listed on the register often lack sufficient court-specific training (Fowler, 2012). In countries where there is traditionally an occupation of public translator or sworn translator, legislatures have simply declared that these translators are by definition qualified to interpret in court proceedings, even if they have never had any training in interpreting (Blasco Mayor and del Pozo Triviño, 2015; Martonova, 1997). In Russia a similar situation prevails. Legal translation is widely taught, but “there are no clear recommendations, qualifications and professional associations for court interpreters,” writes Babanina (2015, p. 18). In light of the influx of immigrants, interpreting studies experts are calling for

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reforms in the legal system to ensure language access for linguistic minorities along the lines of what is in place in the United States (p. 19). It is noteworthy that, whereas in some countries the regulation of court interpreting was initiated by the legislative or judicial branch of government (often with input from professional interpreters), in others, the impetus has come from professional associations themselves. An additional sign of the growing professionalization of judiciary interpreting is the emergence of professional associations. In the United States, the first such organization to be established was the California Court Interpreters Association (CCIA), founded by a group of interpreters in Los Angeles in 1971. The CCIA played a key role in pushing through the legislation that led to the first certification exam in California in 1979. Independently, the Court Interpreters and Translators Association (CITA) was founded in New York in 1978. In 1988 the organization changed its name to the National Association of Judiciary Interpreters and Translators (NAJIT). Meanwhile, the American Translators Association (ATA), founded in the 1950s, began attracting more interpreter members, and many of its regional chapters and affiliated organizations now have large contingents of court interpreters among their membership. In 1998, the ATA started an Interpreter’s Division to meet the needs of members who provide both interpreting and translating services. Many states now have professional associations that are made up partly or entirely of court interpreters. Countries where interpreters themselves have taken the initiative in setting standards tend to have active professional organizations. In Canada, for example, the Society of Translators and Interpreters of British Columbia (STIBC) developed a certification exam in the early 1980s that was eventually adopted for the entire country and is now overseen by the Canadian Translators and Interpreters Council (CTIC). In the United Kingdom, a similar situation prevails: The Chartered Institute of Linguists (CIOL), which represents language professionals including translators and interpreters, administers proficiency exams in various fields of specialization. It awards the Diploma in Police Interpreting (DPI) and the Diploma in Public Service Interpreting (DPSI). The DPSI can be taken in five specialized options: English law, Scottish law, Northern Irish law, health, and local government (Chartered Institute of Linguists, 2016). The Australian Institute of Interpreters and Translators (AUSIT) works closely with the national accreditation organization in encouraging interpreters to hone their skills and obtain their professional credentials. All of these organizations hold regular conferences and training sessions for the benefit of their members and engage in efforts to educate the public about their profession. In Europe, professional associations of legal interpreters and translators working in different countries are represented in the European Legal Interpreters and Translators Association (EULITA), which promotes professionalization and quality in the provision of language services to ensure access to justice. Until relatively recently, court interpreting was ignored by the established schools for interpreters. What little training was available was offered by

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professional associations. European schools of conference interpreting may have had a course in legal interpreting as part of their curriculum, but none offered degrees or specializations in judiciary interpreting. Sweden, in the vanguard as it so often is, first developed training programs for community interpreters (including court interpreters) in folk high schools in 1968; later on, more comprehensive interpreter training was introduced at the university level (Ozolins, 1998). In Europe, since Directive 2010/64/EU was adopted, more attention has been given to providing university-level training for court interpreters. Often this training is part of a degree program in public service interpreting, as it is at the University of Alcalá de Henares in Spain (Universidad Alcalá de Henares, 2016), to cite one example. In the United States, the Monterey Institute of International Studies (now the Middlebury Institute of International Studies at Monterey) offered its first certificate course in court interpreting in 1983 as an adjunct to the Master of Arts (graduate degree) in Conference Interpreting. That same year, the University of Arizona began its yearly Summer Institute of Court Interpretation. Since that time, universities and colleges all over the United States have launched certificate courses in court interpreting. The first school to offer a degree in the field was the University of Charleston, South Carolina, which began its M.A. in Legal Interpreting and Translating in 1996 (unfortunately, the program was later discontinued). As in other parts of the world, in the United States court interpreting tends to be subsumed under general interpreting degrees or community interpreting programs. For example, the University of Arizona offers a B.A. concentration with a focus on legal and medical interpreting (González et al., 2012), and the University of Maryland offers a Master of Professional Studies in Interpreting, with a Specialization in Conference Interpreting or Public Service/Community Interpreting. The Middlebury Institute of International Studies at Monterey offers a Spanish Community Interpreting Graduate Certificate in addition to its regular M.A. degrees. In Australia, the first training courses for interpreters were offered in the mid-1970s, and more were developed as the national accreditation program took shape (Ozolins, 1998). The National Accreditation Authority for Translators and Interpreters (NAATI) approves and oversees training courses, and because the training is directly geared to the accreditation exams, which do not test subspecialties, court interpreting is taught incidentally rather than as a separate field of specialization. In Canada, Vancouver Community College began a program in court interpreting in 1979 (González et al., 2012), and other colleges and universities have begun offering training in this type of interpreting for both indigenous-language speakers and speakers of the major languages of immigration (Roberts, 1997; Sammons, 1993). More recently, Glendon College at York University extended its interpreting programs to include a Graduate Diploma in General Interpreting (GDGI); as in some of the examples mentioned above, court interpreting is one of the public service settings covered. In the United Kingdom, more than 36 colleges and training centers now offer courses designed to help interpreters prepare for the Diploma in Public

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Service Interpreting, which includes a legal specialization (IoL Educational Trust, 2016). A complicating factor in efforts to raise standards and regulate the court interpreting profession is the multiplicity of languages involved. Whereas conference interpreting is limited to the major languages of international diplomacy and business, and thus can focus training efforts on those languages, virtually any language in the world may be required in a court proceeding. The relative ease of travel and rapid communication, the globalization of trade, as well as ethnic strife and international border disputes, have all resulted in record levels of international migration and court cases involving multiple languages. Some jurisdictions have fairly stable immigrant populations and predictable language needs, while others face the challenge of constant demographic changes. It is extremely difficult to maintain uniform standards for interpreters across languages in any case, and when the languages of greatest need are always in flux, it is almost impossible to keep up with the required training and monitoring of court interpreters. The adoption of high standards by legislatures, courts, and professional associations, and the emergence of specialized training programs for court interpreters mean increasing recognition of court interpreting as a viable profession and a career choice for talented bilinguals. It remains to be seen over the coming decades whether interpreters in the judiciary will enjoy working conditions and professional respect commensurate with the extensive preparation and commitment required to achieve proficiency.

Conclusion In this chapter we have defined court interpreting and explained the role of the interpreter in legal settings. We have reviewed the history of court interpreting from the earliest recorded accounts to the beginning of professionalization in the late twentieth century and more recent developments in the last two decades. We have seen how court interpreting is now recognized as a profession in the sense that regulations and standards are becoming stronger, professional associations are gaining strength, and training programs are increasingly common. It is clear, however, that there is still a great deal of work to be done in making sure that language rights are recognized all over the world and that qualified, well-paid interpreters are present whenever there is a language barrier in court proceedings.

Suggestions for further reading Blasco Mayor, M. and del Pozo Triviño, M. (Eds.) (2015) Legal interpreting at a turning point. Monographs in Translation and Interpreting 7. De Jongh, E. (2012). From the classroom to the courtroom: A guide to interpreting in the U.S. justice system. Amsterdam and Philadelphia: John Benjamins Publishing Co.

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González, R.D., Vasquez, V.F., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. Hale, S. (2004). The discourse of court interpreting: Discourse practices of the law, the witness and the interpreter. Amsterdam and Philadelphia: John Benjamins Publishing Co. Hertog, E. (Ed.) (2001). Aequitas: Access to justice across language and culture in the EU. Antwerp: Lessius Hogeschool, Departement Vertaler-Tolk. Mason, M. (2008). Courtroom interpreting. Lanham, MD: University Press of America. Russell, D. and Hale, S. (Eds.) (2008). Interpreting in legal settings. Washington, DC: Gallaudet University Press. Tipton, R. and Furmanek, O. (2016). Dialogue interpreting. London and New York: Routledge.

References Administrative Office of the Courts. (2008). Professional standards and ethics for California court interpreters. Court Interpreters Program. San Francisco: Judicial Council of California. Arzoz, X. (Ed.) (2008). Respecting linguistic diversity in the European Union. Amsterdam and Philadelphia: John Benjamins Publishing Company. Babanina, T. (2015). The emergence of court interpreting in Russia: Qualified interpreters needed. Research paper published on ResearchGate.net, January 2015. Retrieved January 12, 2016 from https://www.researchgate.net/publication/284899226_THE_ EMERGENCE_OF_COURT_INTERPRETING_IN_RUSSIA_QUALIFIED_INT ERPRETERS_NEEDED Baigorri-Jalón, J. (2014). From Paris to Nuremberg: The birth of conference interpreting. Translated and edited by Holly Mikkelson and Barry Slaughter-Olsen. Amsterdam and Philadelphia: John Benjamins Publishing Company. Blasco Mayor, M. and del Pozo Triviño, M. (2015). Legal interpreting in Spain at a turning point. In M. Blasco Mayor and M. del Pozo Triviño (Eds.), Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 41–71. Chartered Institute of Linguists (CIOL). (2016). Retrieved January 5, 2016 from http:// www.ciol.org.uk/index.php?option=com_content&view=featured&Itemid=435 Colin, J. and Morris, R. (1996). Interpreters and the legal process. Winchester: Waterside Press. Corsellis, A. (2008). Public service interpreting: The first steps. Houndmills, UK: Palgrave Macmillan. Corsellis, A. (2015). Strategies for progress: Looking for firm ground. In M. Blasco Mayor and M. del Pozo Triviño (Eds.), Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 101–114. Council of Europe. (2010, June 1). Convention for the protection of human rights and fundamental freedoms as amended by Protocols No. 11 and No. 14. Retrieved January 12, 2016 from http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ: L:2010:280:0001:0007:en:PDF Fowler, Y. (2012). Non-English-speaking defendants in the Magistrates Courts: A comparative study of face-to-face and prison video link hearings in England.

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Unpublished doctoral dissertation, Aston University. Retrieved January 13, 2016 from http://eprints.aston.ac.uk/19442/1/Studentthesis-2013.pdf Gaiba, F. (1998). The origins of simultaneous interpretation: The Nuremberg trial. Ottawa: University of Ottawa Press. Giambruno, C. (2008). The role of the interpreter in the governance of sixteenth- and seventeenth-century Spanish colonies in the “New World”: Lessons from the past for the present. In Carmen Valero-Garcés and Anne Martin (Eds.), Crossing borders in community interpreting: Definitions and dilemmas (pp. 27–49). Amsterdam and Philadelphia: John Benjamins. González, R.D., Vásquez, V.F., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. Hertog, E. (2015). Directive 2010/64/EU of the European Parliament and of the Council on the Right to Interpretation and Translation in Criminal Proceedings. In M. Blasco Mayor and M. del Pozo Triviño (Eds.), Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 73–100. IoL Educational Trust. (2016). Diploma in Public Service Interpreting (DPSI) Course Provider and Examination Centre contact details. Retrieved January 5, 2016 from https://www.ciol.org.uk/images/Qualifications/DPSI/DPSICentres.pdf Lebese, S. (2015). Formulation of court interpreting models: A South African perspective. Stellenbosch Papers in Linguistics, 44, 61–80. Martonova, K. (1997). Court interpreting and legal translation in the Czech Republic. In Z. Rybinska (Ed.), On the practice of legal and specialised translation (pp. 103–110). Warsaw: The Polish Society of Economic, Legal and Court Translators (TEPIS). Minnesota Department of Human Services. (2015). Meaningful access. Retrieved May 5, 2016 from https://definedterm.com/meaningful_access. Moeketsi, R. (1999). Redefining the role of the South African court interpreter, Proteus, 3(3–4), 12–15. Morris, R. (2010). Images of the court interpreter: Professional identity, role definition and self-image. Translation and Interpreting Studies, 5(1), 20–40. Ozolins, U. (1998). Interpreting & translating in Australia: Current issues and international comparisons. Victoria: The National Languages and Literacy Institute of Australia. Roberts, R. (1997). Community interpreting today and tomorrow. In S.E. Carr, R.P. Roberts, A. Dufour, and D. Steyn (Eds.), The critical link: Interpreters in the community (pp. 7–26). Amsterdam: John Benjamins. Sammons, S. (1993). Challenges in minority language programming in Canada’s Eastern Arctic: The training of Aboriginal language interpreter-translators, Meta, 38(1), 45–49. Sarmiento Pérez, M. (2011). The role of interpreters in the conquest and acculturation of the Canary Archipelago. Interpreting: International Journal of Research and Practice in Interpreting, 13(2), 155–175. Tipton, R. and Furmanek, O. (2016). Dialogue interpreting. London and New York: Routledge. Tybulewicz, A. (1997). ITI and its law, insurance, finance and court networks, in Z. Rybinska, (Ed.), On the practice of legal and specialised translation (pp. 30–41). Warsaw: The Polish Society of Economic, Legal and Court Translators (TEPIS). Universidad Alcalá de Henares. (2016). (European) Master’s Degree in Intercultural Communication, Public Service Interpreting and Translation. Retrieved January 5, 2016 from http://www3.uah.es/master-tisp-uah/uploads/section1/Flier-Master15-16% 20EN-March15.pdf

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Court interpreting laws and regulations

Interpreters fulfill a variety of functions in the legal sphere: they assist law enforcement agencies in questioning witnesses and suspects, enable attorneys to communicate with their clients, interpret court proceedings for defendants and litigants, and interpret witness testimony for the court. The interpreter may be regarded as an arm of the law, part of the defense or prosecution “team,” an expert witness, or an impartial officer of the court. In this chapter we will examine the laws and regulations that govern court interpreting, legal definitions of what constitutes a competent interpreter, and credentialing requirements for court interpreters in various countries.

The right to an interpreter When an official agency or institution such as the police, the public prosecutor, or a court requires the services of an interpreter to assist in investigating a crime or examining a witness, there is never any doubt of its legal authority to obtain those services. The code of criminal procedure may contain some provisions about interpreters as expert witnesses or evidence obtained through an interpreter, but the presence of the interpreter is not a controversial issue. The potential for abuse, and hence the controversy, arises when a limited language proficient (LLP) individual is accused of a crime. Because the language barrier prevents that individual from defending himself properly, and because unscrupulous authorities may not consider it to be in their best interests to provide an interpreter for the defendant, special safeguards are required to protect individual rights and guarantee due process. That is why the United Nations International Covenant on Civil and Political Rights of 1966 provides, in Article 14, 1

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: a

To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; b To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; …

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Court interpreting laws and regulations c

To have the free assistance of an interpreter if he cannot understand or speak the language used in court; … (Ishay, 2007, p. 288)

Europe In Europe, virtually all countries guarantee the right to an interpreter for LLP litigants. The Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by the Council of Europe in 1950, guarantees in Article 6, among other things, 1) that the defendant in a criminal case be present in person when the case is heard in court, 2) that the evidence be heard by an “impartial tribunal,” and 3) that the defendant be informed of the charges “in a language which he understands” and shall “have the free assistance of an interpreter if he cannot understand or speak the language used in the court” (Jacobs and White, 1996, pp. 122–123). However, in 2001, the provision of legal interpreting was characterized as “often patchy and uneven” (Hertog, 2001, p. 13). To enhance language rights throughout the European Union, in 2010 the Council and Parliament adopted Directive 2010/64/EU, which set a deadline of 2013 for the achievement of certain benchmarks in the provision of interpreting services (Hertog, 2015b). This prompted the passage of legislation by countries that had not previously implemented strong protections for linguistic minorities’ access to the courts. For example, a new law in Slovenia established a National Register of Court Interpreters under the auspices of the Ministry of Justice. In addition, the Association of Translators and Interpreters was founded in 2014 to strengthen the profession, and it has a Court Interpreter Section (Kutin and Ivelja, 2015). Even countries that already had robust requirements for interpreting services bolstered their regulations. For example, in Denmark, a task force was appointed to examine the legal and practical issues involved in court interpreting and in 2003 produced the Guidelines for interpreting in Danish court proceedings, described by Christensen (2008) as a “normative model in terms of what constitutes good interpreting” (p. 100). As of 2009, Austria had a certification program with a rigorous examination procedure for interpreters to be eligible for listing on the national register (Springer, 2009). Hertog (2015a) reports that some countries have taken the provisions of Directive 2010/64/EU to heart, whereas others lagged behind. As of 2015, for instance, Greece still had no requirements or qualification for being on the list of court interpreters maintained by the local Council of Magistrates in each jurisdiction, even though Article 233 of the Code of Criminal Procedure requires the courts to use only interpreters from that list (Resta and Ioannidis, 2015). An overview of legislation on language access, linguistic diversity, and a number of other factors related to interpreting in European Union Member States can be found in Giambruno (2014) and on the Qualitas (2013) website.

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The Americas In the United States, interpreters are considered an essential element in guaranteeing the defendant’s right to due process under the Fifth and Sixth Amendments to the Constitution. The interpreter protects those rights primarily by ensuring the defendant’s “presence” when his case is heard, providing a complete real-time interpretation of everything that is said in court. The defendant’s right to be present at all stages of the proceedings has long been recognized in U.S. case law (Lewis v. United States, 1892), and the notion of “linguistic presence” (i.e., that the defendant cannot be present at his trial if he does not understand the language of the proceedings) was established in Arizona v. Natividad (1974). A California case, People v. Chavez (1981), declared that appointing a bilingual defense attorney is not enough to guarantee a defendant’s right to interpretation. The Court Interpreters Act of 1978 established a certification program to ensure the competency of interpreters working in the federal courts, and nearly all of the 50 states have joined the Consortium for Language Access in the Courts and enacted laws or regulations concerning the quality of interpreting in the state courts (González et al., 2012). Canada provides similar guarantees. The Canadian Charter of Rights and Freedoms of 1982 states in Section 14 that “a party or witness in any proceeding who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right of the assistance of an interpreter” (Northwest Territories Justice, 1993, pp. 1–2). With its large population of indigenous groups, Canada has made special provisions for interpreters in aboriginal languages (Akeeshoo, 1993; Repa, 1988). The American Convention on Human Rights, signed in 1969 and adopted in 1978 as an Organization of American States treaty, recognizes in Article 8, Paragraph 2 (a) “the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court.” Individual countries in Latin America have their own provisions for meeting the language needs of litigants who do not speak the language of the courts. Argentina, for example, has a wellestablished public translator profession, with highly respected university degree programs in translation and strict regulations governing practice. Given that until recently most legal proceedings were conducted in writing, public translators were able to meet the courts’ language needs quite effectively, and only rarely would interpretation of oral testimony be required. With the recent advent of oral trials, however, this situation has changed, and the profession has had to adopt new guidelines to incorporate the additional interpretation duties (Colegio de Traductores Públicos, 1997). Brazilian public translators are also required to be prepared to interpret in court when called upon to do so (Randmer, 1998). Other Latin American countries have taken steps to acknowledge the rights of linguistic minorities who appear in court. In Mexico, for example, while

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there is no constitutional guarantee of the right to an interpreter, the Code of Criminal Procedure allows the judge to appoint an interpreter if any defendant, complainant, witness, or expert does not speak enough Spanish to communicate effectively. In the case of a non-Spanish-speaking defendant, a 1991 revision of the Federal Code of Criminal Procedure specifies that the interpreter is to be appointed as soon as the arrest takes place, and is to be made available throughout the proceedings to enable the defendant to communicate with counsel (Colín Sánchez, 1992). Countries with large indigenous populations have only recently made provisions for interpretation in indigenous languages. According to Weller Ford (1992), between 55 and 60 indigenous languages are still spoken in Mexico, and efforts are now being made to train interpreters to meet the needs of monolingual indigenous persons in their dealings with Mexican public agencies. In Guatemala, the peace accord of 1994 acknowledged the rights of indigenous Guatemalans and contained provisions for translation and interpretation services (Landaverde, 1999). Asia Although many Asian countries are signatories to agreements such as the International Covenant on Civil and Political Rights of 1966, they do not necessarily adhere to all of the provisions of these treaties. Hong Kong is a notable exception, perhaps because of its bilingual legal system, a product of its transition from a British territory to a special administration region of China. In fact, it has been described as “one of the most ‘interpreted’ legal systems in the world” (K.H. Ng, 2009, as cited in E. Ng, 2015, p. 245). Hong Kong’s is an unusual situation in that interpreters are required not for a linguistic minority but for the majority language, Cantonese, when court proceedings are conducted in English. Even jurors require interpreters in this common-law legal system. As of 2015, the Hong Kong court system employed about 150 full-time staff interpreters (Ng, 2015, p. 245). Consequently, there is an established cadre of experienced court interpreters in Hong Kong (Koo, 2009; Ng, 2009; 2015). In addition, there are signs of improvement in a few other countries, including Japan and Korea, where recent waves of immigration have led to reforms (see, for example, Kida, 2011 and Nakane, 2010). However, this description of the situation in South Korea can be considered typical: “The court interpreting system in South Korea is in many ways underdeveloped, and the qualifications and role of interpreters have not attracted much attention in legal circles” (Lee, 2015, p. 172). In contrast, interpreters have long been a fixture in the courts of Malaysia, a land of many ethnic groups, cultures, and languages. The Criminal Procedure Code explicitly states that interpreters should be provided for defendants who do not speak the official language of the court (Ibrahim, 2007). Indeed, Khoon (1990, p. 109) asserts, “It is a fact that almost every case that comes to the courts, be it civil or criminal, requires the help of an interpreter.” Another

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Asian country with a long multilingual tradition is Singapore, where court interpreting has been given high priority. An innovative system of remote interpreting using video conferencing allows a centralized corps of interpreters to serve courts located anywhere in the country (Ozolins, 1998). Ozolins reports that elsewhere in Asia, and in the Middle East, “often quite radical multilingualism can exist without much concern for providing language services” (p. 116). Even in India, with nine official languages, little interpreting takes place in public agencies. In the Middle East, “now a region of massive international labour movement, … there is little likelihood that language services of any kind would develop for these internal needs” (p. 116). And in Israel, “the time-honoured response of trusting to ubiquitous multilingual individuals to broker language situations is continuing,” despite the presence of highly trained interpreters who have written extensively about legal interpreting (p. 116). This situation has been corroborated more recently by Morris (2008). Australia and New Zealand Like the United Kingdom and Canada, Australia does not have a constitutional or statutory guarantee of the right to an interpreter, but precedent decisions and rules of court address the needs of non-English-speaking litigants. For example, the ruling in R. v. Lee Kun stated that an accused cannot be considered present at his trial if he does not understand the language of the court (Gentile et al., 1996). In countries where constitutional guarantees of the sort seen in the United States are “muted or nonexistent, there has been no explicit prioritising of court interpreting over language services for other areas of public life” (Ozolins, 1998, p. 9). Rather, generic language services have been set up to meet the various needs of the public sector, and standards have been developed in an ad hoc but effective manner. Until recently, aboriginal languages were treated differently from the languages of immigrants, but efforts are now being made to integrate them into other language service structures (Ozolins, 1998). Specific provision is made for interpreting aboriginal languages in Article 5 of the Convention on the Elimination of All Forms of Racism (Cooke, 1995). New Zealand has three official languages: English, Ma-ori and New Zealand sign language, and despite its small population, over 160 languages are spoken in the country (Crezee et al., 2015, p. 273). Although the Ministry of Justice requires court interpreters to be members of the New Zealand Society of Translators and Interpreters (NZSTI), which in turn stipulates a certain level of education or experience as a condition for membership, in fact there is no legal requirement for any registration or training of court interpreters (p. 274). Africa Many African countries are struggling to keep up with the rest of the world in the area of civil rights. It is interesting to note that the African Charter on Human and Peoples’ Rights of 1986, which is largely patterned after the

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Court interpreting laws and regulations

International Covenant on Civil and Political Rights of 1966 and contains wording very similar to that of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the American Convention on Human Rights, does not contain any provision for court interpreters (Ishay, 2007). Some African countries with long multilingual traditions do have laws requiring the presence of interpreters in court proceedings, however. The Kenyan Constitution recognizes the right to an interpreter in criminal proceedings, though with 40 languages spoken in the country it is difficult to find qualified interpreters in many of them (Gatitu, 2006). South Africa had two official languages under the apartheid system, thus setting a precedent for interpreting in the courts. The formal training of court interpreters dates back to 1957 (Ozolins, 1998), and now encompasses all the major languages of the country. South Africa is making an effort to guarantee high standards for interpreting in all of its 11 official languages (Inggs, 1998; Lebese, 2015; Moeketsi, 1999a and b). Today every citizen has a right to demand a trial in his own language, which means that English- or Afrikaansspeaking judges (who are still in the majority on the bench) must depend totally on interpreters to understand the proceedings (Moeketsi, 1999b, p. 13). Indeed, Moeketsi asserts that “it is solely through [the interpreter’s] language proficiency and his familiarity with the cultures of the defendant and that of the courtroom that the court can even think of proceeding.” However, there is no legislation defining the role of the court interpreter, and training is scarce (Lebese, 2013, 2015). The proceedings of the Truth and Reconciliation Commission, which began in 1995 as South Africa made the transition to democracy, provided a valuable experience in conducting multilingual hearings with simultaneous interpretation. It is also significant that interpreters had a major presence in the International Criminal Tribunal for Rwanda, which convened in 1994 and concluded its work in 2015; perhaps that experience will have a positive influence on the development of the profession in neighboring countries.

Defining competency It is one thing to enact a law requiring that an interpreter be present to assist litigants who do not speak the language of the court; it is quite another to determine whether that interpreter is competent, or to enable judiciary personnel to identify qualified interpreters. In many countries, unfortunately, decisions about whether an interpreter is required and who is qualified to act as an interpreter are left to the discretion of the judge. Judges are experts in the law, however, not in language or interpreting competence. In countries with welldeveloped court interpreting programs, it has been found that an objective testing and credentialing system is the best way to eliminate subjective decisionmaking by identifying the most qualified court interpreters and making their names available to the judiciary. Qualified interpreters are usually known as “certified” interpreters, though “accredited” is the term preferred in some

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countries (Hlavac, 2013). In other countries, they are called “sworn,” “public,” or “official” interpreters, though the title does not always indicate that the person has taken an interpreting proficiency exam. U.S. Federal Court Interpreters Exam Perhaps the most widely respected exam designed to test court interpreter proficiency is the Federal Court Interpreter Certification Exam (FCICE) developed for the United States Administrative Office of the Courts (González et al., 2012). First administered in 1980 and given regularly since then, the exam consists of two parts. Candidates first take a written exam that tests their knowledge of the formal registers of English and Spanish (the only language in which the exam is currently given) as well as legal terminology. Candidates who pass the written test qualify to take the oral portion, a 40-minute exam in which they must demonstrate their proficiency in sight translation, simultaneous interpreting, and consecutive interpreting. The sight translation section consists of two 250-word texts on law-related subjects, one in English and the other in Spanish, each of which they must translate orally in five minutes. The simultaneous component has two subsections, one an attorney’s argument recorded at approximately 120 words per minute, and the other a cross-examination at approximately 160 words per minute. The candidate is tested in simultaneous interpretation from English to Spanish but not vice-versa, which reflects actual practice in the courtrooms of the United States. The consecutive interpreting segment consists of a 15-minute live simulation of an attorney’s examination of a witness, with questions in English and answers in Spanish. The candidate must interpret detailed statements up to 60 words in length without interrupting the speaker. All of the material to be interpreted is carefully selected to reflect actual courtroom language and situations (González et al., 2012, p. 1168). The written portion, being multiple-choice, is machine scored, whereas the oral portion is recorded by a proctor and scored by raters who have been trained to evaluate this particular exam. González et al. (2012, p. 1168) describe the way the exam is scored: A unique feature of the oral examination is its bipartite rating system involving subjective and objective assessment. Two hundred and twenty (220) objective scoring units, distributed throughout the examination, represent important interpreting pitfalls, such as commonly used legal phrases, specialized terminology, grammatical items, idiomatic expressions, jargon, rhetorically charged argumentative language, purposefully ambiguous or extremely precise language, dates, addresses, quantities, and exhibit numbers, among others. Over the years since the test’s inception, the pass rate for both the written and the oral exams has ranged from one to ten percent (González et al., 2012, p.

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Court interpreting laws and regulations

1172), a figure which reflects the rigorous standards set by the exam, the difficulty of court interpreting, and the lack of training programs to help candidates prepare for it. Although the exam was challenged in court by an unsuccessful candidate, it was found to be a valid and reliable test of the skills required of interpreters in the courtroom. To ensure its validity, the test developers first conducted a needs assessment, in which judges, interpreters, linguists, and psychometricians analyzed the tasks performed by court interpreters and determined the best way to test the prerequisite skills. Once the test instrument was written, it was piloted and subjected to statistical analyses. Each time a new instrument is developed, it is subjected to the same process to guarantee reliability and validity. The FCICE has been criticized as an expensive and elaborate test that leaves the courts without enough interpreters to meet their needs. Whether or not that criticism is fair, it is true that the high cost of administering the exam has limited the number of languages in which it can be given. Many state court systems have implemented more streamlined testing procedures that nevertheless attempt to test for the same qualities (González et al., 2012). Because they are less expensive to administer, these tests can be given more frequently and in more languages than the federal exam. There has been heated debate about the relative merits of the state and federal certification procedures, but objective testing has become an accepted standard for selecting court interpreters. Other exams The Federal Court Interpreter Certification Exam has been used as a model for other jurisdictions in developing their exams for court interpreters, but it is not the only exemplar available. The Registry of Interpreters for the Deaf (RID), also in the United States, has devised a highly respected exam to test the proficiency of sign-language interpreters, and it also offers a specialist certificate in legal interpreting. To be eligible to take the legal interpreting test, candidates must already be certified by the RID for general interpretation, and must demonstrate specialized knowledge of legal settings and greater familiarity with language used in the legal system (Registry of Interpreters for the Deaf, 2015). Sweden has a well-developed system for ensuring quality interpretation. The Legal, Financial and Administrative Services Agency conducts tests to authorize (certify) court interpreters. They are tested in their knowledge of legal terms and basic legal concepts, in both Swedish and the interpretation language, followed by oral examinations involving simulated court proceedings (Torstensson and Sullivan, 2011). Norway has a process similar to Sweden’s for accrediting “social interpreters,” but it combines legal interpreting with other public service sectors in a single exam, and a training component is included in the process (Skaaden, 2013). Like Sweden, the Netherlands has a long history of ensuring quality in public service interpreting, dating back to the 1970s. In 2007 a law was promulgated to strengthen interpreting standards in the justice system, under which interpreters are certified specifically for the

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legal setting and courts, and immigration authorities and law enforcement agencies are required to use certified interpreters. To be listed on the official register, interpreters must have either a diploma in court interpreting or proof of passing a test recognized by the Legal Aid Board. To maintain their status, they must show proof of continuing education and active practice as court interpreters (De Boe, 2015). An overview of credentialing requirements in European Union Member States can be found in Giambruno (2014) and on the Qualitas (2013) website. The Australian certification program is another model worthy of mention. Rather than focusing on specific types of interpreting, Australia has a multi-tiered program of accreditation in which interpreters are rated at four different levels: 1) Paraprofessional Interpreter, 2) Interpreter, 3) Conference Interpreter, and 4) Conference Interpreter (Senior). This generalist approach is unique in that it allows all interpreters to strive for the highest level of certification, regardless of what setting they work in. In other words, court interpreters are not automatically regarded as inferior to conference interpreters, as is the case in many countries. The designers of the accreditation system wanted to avoid an exclusive demarcation between the previously established profession of conference interpreters and technical translators for international needs on the one hand, and the newer emerging group of interpreters and translators servicing local needs on the other; rather, they saw all these practitioners as essentially the one profession with differences of specialities and levels as in other professions. (Ozolins, 1998, p. 42) Candidates for Level 2, Interpreter, are tested in consecutive interpreting only, whereas candidates for the higher levels are tested in both consecutive and simultaneous interpreting (Bell, 1997). It is recommended, though not required by law, that court proceedings be interpreted by interpreters at the third level or above. The test is now given in over 50 languages (Ozolins, 1998). However, Hayes and Hale (2010) have noted serious inadequacies in the non-specialist accreditation system. In their study of appeals of interpreted cases, they found that there is “no clear link between NAATI accreditation and rate of approval” (p. 124), using the term “approval” to refer to appeals upheld on the basis of the interpreter’s qualifications. They contend that the accreditation system “shows a lack of understanding of the different types of interpreting” (p. 121). In the United Kingdom, the National Register of Public Service Interpreters was established in 1994 (Corsellis, 1995). To be fully registered, an interpreter must have a recognized qualification in public service interpreting and evidence of appropriate work experience. The Diploma in Public Service Interpreting is such a qualification, and it can be obtained by taking an accredited course of study or by sitting for the Public Service Interpreting Exam administered by the Chartered Institute of Linguists (CIOL). The exam includes two interpreting role plays and translation in both directions (Corsellis, 1997; Qualitas,

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2013). Shortcomings in this system have been identified by researchers such as Fowler (2013) and Corsellis (2015), especially because of the recent trend in outsourcing interpreting services to private, for-profit agencies (García-Beyaert, 2015). In Canada, the certification exam for court interpreters is overseen by the Canadian Translators and Interpreters Council (CTIC). Candidates are tested in language proficiency, legal terminology and procedures, consecutive interpreting, and a mock trial. It is clear from this discussion that the selection of interpreters is too crucial a decision to be left to judges and lawyers, or self-reporting of individuals who place their name on a list, as is done in many countries (Manganaras, 1997; Martonova, 1997; Resta and Ioannidis, 2015). An overview of certification requirements throughout the world can be found in Hlavac (2013). Countries with the most highly developed court interpreting programs have found that objective performance exams are the best way to identify individuals with the skills required to carry out this important task.

The role of the professional association The professional association plays a critical role in establishing and maintaining high standards of performance in court interpreting. In some countries, interpreting exams are administered by the associations themselves (as is the case in Canada and the United Kingdom), while in others (e.g., Australia and the United States), professional associations work closely with government agencies and accrediting bodies to guarantee the quality of testing programs. In Europe, professional associations of legal translators and interpreters are represented by an umbrella organization, the European Legal Interpreters and Translators Association (EULITA), which holds periodic conferences and promotes the profession in general (EULITA, 2016). In addition to providing services for their members, such as training, dissemination of news, liaison with the judicial system, and advocating for the profession, these organizations also strive to educate the public about language issues in general and court interpreting in particular, and teach other professionals how to work effectively with interpreters. They also maintain ties with the other professionals they work with in legal settings, the bar and the bench (i.e., lawyers and judges).

Educating the bar and the bench Throughout this chapter we have illustrated how under-developed the court interpreting profession is in many countries. Tipton and Furmanek (2016) underline the need for quality assurance in light of inconsistencies and the lack of regulation. Legislative and administrative changes are urgently needed to bolster the quality of interpreting services for language access, including the dissemination of best practices (Corsellis, 2015; Giambruno, 2014; Qualitas, 2014) and the recommendation that all interpreted proceedings be recorded in

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order to capture both source and target utterances (González et al., 2012; Hayes and Hale, 2010), but the entire culture of the legal profession needs to undergo a paradigm shift. For that reason, professionals in the judiciary must be made aware of the issues that arise in interpreted court proceedings so that they can take steps to ensure due process regardless of the language barrier. Accordingly, in 2010 EULITA and the European Criminal Bar Association developed a Vademecum to provide guidelines for effective communication in interpreted legal proceedings. It makes recommendations about selecting a qualified interpreter (who should be either certified or someone whose qualifications and skills have been previously verified), giving interpreters adequate case information for advance preparation, seating in the courtroom, introduction of all actors in the courtroom so that everyone will be aware of the interpreter’s role, handling written documents for sight translation, providing for simultaneous interpreting with equipment, minimizing interruptions of the interpretation, offering frequent breaks for interpreters, limiting interpreters to tasks that are within the scope of their duties, and appropriate methods for requesting cultural information from interpreters. Similarly, González et al. (2012) have devoted two entire chapters to providing guidance for judges and attorneys for working with litigants who have limited proficiency in the language of the courts. They include recommended instructions for judges to give to courtroom actors, such as defendants, witnesses, jurors and attorneys. General instructions include admonitions to keep statements short and to the point, avoiding excessive jargon, slang and technical terms; to avoid rhetorical questions and double negatives; to address witnesses in the second person rather than directing questions to the interpreter; and to respect interpreter requests for pauses in the case of unusually long statements or questions (p. 583). These are followed by specific instructions for the defendant, witnesses, and jurors regarding the role of the interpreter (pp. 584– 587). Appendix B of this volume provides an example of instructions that can be read to the parties in interpreted proceedings. Hale (2015) reports on a series of workshops she has offered for magistrates and judges in Australia. She includes a sample exercise on working with interpreters (p. 173) and a helpful set of guidelines that can be distributed to workshop participants (p. 178). The Bench and Bar Committee of the National Association of Judiciary Interpreters and Translators (2012) provides a Powerpoint presentation on its website that anyone can use to develop this type of training. It is incumbent upon interpreters’ professional associations and individual interpreters to call attention to materials such as the instructions and guidelines mentioned here so that court personnel will be able to work with them more effectively.

Conclusion In this chapter we have explored the legal underpinnings of the right to an interpreter in different parts of the world, definitions of competence, court

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interpreter credentialing in various countries, the role of the professional association and the importance of educating legal professionals about working with interpreters. Although there are tremendous disparities in the way different judicial systems address language rights, it is almost universally recognized that criminal defendants and witnesses who do not speak the language of the court must be assisted by translators and interpreters to participate fully in court proceedings.

Additional study activities 1

2

3

4

Discuss why it is important to have a competent interpreter, and what problems could arise without one. Do you think the government should provide interpreters free of charge for everyone who needs one? Is competent interpreting equally important in criminal and civil cases? Why or why not? Find out what laws and regulations govern court interpreting in your country. How do they compare to those discussed in this chapter? If you could write a law on court interpreting, what would it say? Find out if there is a professional organization of interpreters in your country. If so, what are its functions, and who are its members? If not, discuss with your class how you might go about forming such an association. Decide what you want the organization to be like, and draft bylaws for it. Identify the characteristics you think a court interpreter should have, and outline an exam that tests for those qualities. Decide whether you would have written or oral components, and give reasons for your decision.

References Akeeshoo, A. (1993). Legal interpreting in Canada’s eastern Arctic. Meta, 38(1), 35–37. Arizona v. Natividad, 111 Ariz. 191 (Ariz. 1974). Bell, S. (1997). The challenges of setting and monitoring the standards of community interpreting: An Australian perspective. In S. Carr, R. Roberts, A. Dufour, and D. Steyn (Eds.), The critical link: Interpreters in the community (pp. 93–108). Amsterdam and Philadelphia: John Benjamins Publishing Company. Christensen, T. (2008). Judges’ deviations from norm-based direct speech in court [Special issue]. Interpreting: International Journal of Research and Practice in Interpreting, 10(1), 99–127. Colegio de TraductoresPúblicos. (1997). Colegio de Traductores Públicos de la Ciudad de Buenos Aires. Buenos Aires: Colegio de Traductores Públicos. Colín Sánchez, G. (1992). Derecho mexicano de procedimientos penales. Mexico City: Editorial Porrúa, S.A. Cooke, M. (1995). Understood by all concerned? Anglo/Aboriginal legal translation. In M. Morris (Ed.), Translation and the law, American Translators Association Scholarly Monograph Series, Vol. VIII (pp. 37–63). Amsterdam, Philadelphia: John Benjamins Publishing Company. Corsellis, A. (1995). Non-English speakers and the English legal system. Cambridge: The Institute of Criminology, University of Cambridge, Cropwood Occasional Paper No. 20.

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Corsellis, A. (1997). Access to public service interpreting: Why is it necessary? Who is doing what? The Linguist, 36(5), 144–146. Corsellis, A. (2015). Strategies for progress: Looking for firm ground. In M. Blasco Mayor and M. del Pozo Triviño (Eds.), Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 101–114. Crezee, I., Burn, J., and Gailani, N. (2015). Authentic audiovisual resources to actualize legal interpreting education. In M. Blasco Mayor and M. del Pozo Triviño (Eds.), Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 271–293. De Boe, E. (2015). The influence of governmental policy on public service: Interpreting in the Netherlands. Translation & Interpreting, 7(3), 166–184. EULITA. (2016). Mission statement. Retrieved January 13, 2016 from http://www. eulita.eu/mission-statement EULITA and the European Criminal BarAssociation. (2010). Vademecum for magistrates, prosecutors, attorneys and legal interpreters: Guidelines for a more effective communication with legal interpreters and translators. London: European Criminal Bar Association. Fowler, Y. (2013). Non-English-speaking defendants in the magistrates court: A comparative study of face-to-face and prison video link hearings in England. Unpublished doctoral dissertation, Aston University. Retrieved January 13, 2016 from http://eprints.aston.ac.uk/19442/1/Studentthesis-2013.pdf. García-Beyaert, S. (2015). Key external players in the development of the interpreting profession. In H. Mikkelson and R. Jourdenais (Eds.), The Routledge handbook of interpreting (pp. 45–61). London and New York: Routledge. Gatitu, K. (2006). Strategies employed by court interpreters and categories of interpreter error in selected Kenyan courts. Unpublished master’s thesis, Kenyatta University, Nairobi, Kenya. Gentile, A., Ozolins, U., and Vasilakakos, M. (1996). Liaison interpreting: A handbook. Melbourne: Melbourne University Press. Giambruno, C. (2014). The current state of affairs in the UE: Member state profiles. In C. Giambruno (Ed.), Assessing legal interpreter quality through testing and certification: The Qualitas project (pp. 149–190). Alicante, Spain: University of Alicante Publications. González, R., Vasquez, V., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. Hale, S. (2015). Approaching the bench: Teaching magistrates and judges how to work effectively with interpreters. In M. Blasco Mayor and M. del Pozo Triviño (Eds.). Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 163–180. Hayes, A. and Hale, S. (2010). Appeals on incompetent interpreting. Journal of Judicial Administration, 20, 119–130. Hertog, E. (Ed.) (2001). Aequitas: Access to justice across language and culture in the EU. Antwerp: Lessius Hogeschool, Departement Vertaler-Tolk. Hertog, E. (2015a). Looking back while going forward: 15 years of legal interpreting in the EU. Trans. Revista de Traductología, 19(1), 15–31. Hertog, E. (2015b). Directive 2010/64/EU of the European Parliament and of the Council on the Right to Interpretation and Translation in Criminal Proceedings. In M. Blasco Mayor and M. del Pozo Triviño (Eds.). Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 73–100. Hlavac, J. (2013). A cross-national overview of translator and interpreter certification procedures. Translation & Interpreting, 5(1), 32–65.

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Ibrahim, N. (2007). Interpreting in Malaysia: An overview. Puentes, 7, October 2007, 89–96. Inggs, J. (1998). Current developments in court interpreter training in South Africa. Proteus, 7(4), 1, 3–4. Ishay, M. (Ed.) (2007). The human rights reader: Major political essays, speeches, and documents from the Bible to the present, 2nd ed. New York, London: Routledge. Jacobs, F. and White, R. (1996). The European Convention on Human Rights. Oxford: Clarendon Press. Khoon, W.F. (1990). Court interpreting in a multiracial society – the Malaysian experience. In D. Bowen and M. Bowen (Eds.), Interpreting – yesterday, today, and tomorrow, American Translators Association Scholarly Monograph Series, Volume IV (pp. 108–116). Binghamton, NY: State University of New York at Binghamton. Kida, P. (2011). The impact of language diversity in Japanese courtrooms: The challenges of a court interpreter. In L. Zybatow, A. Petrova, and M. Ustaszewski (Eds.), Translation studies: Old and new types of translation in theory and practice (pp. 315–321). Bern: Peter Lang. Koo, A. (2009). Truth through court interpreters. International Journal of Evidence & Proof 13(3), 212–224. Kutin, Š. and Ivelja, I. (2015). Challenges in the light of the implementation of Directive 2010/64/EU. Paper presented at the EULITA conference “Professionalization vs. Deprofessionalization: Building Standards for Legal Interpreting and Translating,” Opatija, 20–21 March 2015. Retrieved March 31, 2015 from http://www.eulita.eu/p rofessionalization-vs-deprofessionalization-building-standards-legal-translators-and-in terpreters. Landaverde, M. (1999). Vernacular languages of Guatemala. ATA Chronicle, 28(10), 56–57. Lebese, S. (2013). The undefined role of court interpreters in South Africa. Unpublished master’s thesis, University of South Africa. Retrieved January 13, 2016 from http://uir. unisa.ac.za/bitstream/handle/10500/11923/dissertation_lebese_sj.pdf?sequence=1. Lebese, S. (2015). Formulation of court interpreting models: A South African perspective. Stellenbosch Papers in Linguistics, 44, 61–80. Lee, J. (2015). Evaluation of court interpreting: A case study of metadiscourse in interpreter-mediated expert witness examinations. Interpreting: International Journal of Research and Practice in Interpreting, 17(2), 167–194. Lewis v. United States, 146 U.S. 370(1892). Manganaras, I. (1997). Court interpreting in Greek criminal proceedings. In Z. Rybinska (Ed.), On the practice of legal and specialised translation (pp. 85–102). Warsaw: The Polish Society of Economic, Legal and Court Translators TEPIS. Martonova, K. (1997). Court interpreting and legal translation in the Czech Republic. In Z. Rybinska (Ed.), On the practice of legal and specialised translation (pp. 103–110). Warsaw: The Polish Society of Economic, Legal and Court Translators TEPIS. Moeketsi, R. (1999a). Discourse in a multilingual and multicultural courtroom: A court interpreter’s guide. Pretoria: JL van Schaik. Moeketsi, R. (1999b). Redefining the role of the South African court interpreter. Proteus, 3(3–4), 12–15. Morris, R. (2008). Missing stitches: An overview of judicial attitudes to interlingual interpreting in the criminal justice systems of Canada and Israel [Special issue]. Interpreting: International Journal of Research and Practice in Interpreting, 10(1), 34–64.

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Nakane, I. (2010). Partial non-use of interpreters in Japanese criminal court proceedings. Japanese Studies, 30(3), 443–459. National Association of Judiciary Interpreters and Translators Bench and Bar Committee. (2012). Interpreting in a legal setting: A guide for the judge. Retrieved January 29, 2016 from http://www.najit.org/advocacy/Statements/bench%20pp.pdf. Ng, E. (2009). The tension between adequacy and acceptability in legal interpreting and translation. In S. Hale, U. Ozolins, andL. Stern (Eds.), The critical link 5: Quality in interpreting – A shared responsibility (pp. 37–54). Amsterdam: John Benjamins. Ng, E. (2015). Teaching and research on legal interpreting: A Hong Kong perspective. In M. Blasco Mayor and M. del Pozo Triviño (Eds.). Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 243–270. Northwest TerritoriesJustice. (1993). Des territoires du Nord-Ouest: Manuel des interprètes judiciaires (Northwest Territories Justice). Ozolins, U. (1998). Interpreting and translating in Australia: Current issues and international comparisons. Victoria: The National Languages and Literacy Institute of Australia. People v. Chavez, 124 Cal. App. 3d 215, 177 Cal. Rptr. 306(1981). Qualitas. (2013). Member State profiles. Retrieved January 29, 2016 from http://www. qualitas-project.eu/country-profiles. Randmer, V. (1998). The function of public translators in Brazil. Translated by Donna Sandin. ATA Chronicle, 28(8), 39–40. Registry of Interpreters for the Deaf. (2015). Specialist certificate: Legal. Retrieved January 14, 2016 from http://rid.org/rid-certification-overview/scl-certification/. Repa, J. (1988). Professional status today and tomorrow: Case of court interpreters in Canada. In D.L. Hammond (Ed.), Languages at crossroads: Proceeding of the 29th annual conference of the American Translators Association (pp. 441–449). Medford, NJ: Learned Information. Resta, Z. and Ioannidis, A. (2015). A sociological approach of the professionalization process of court interpreting in Greece. Paper presented at the EULITA conference “Professionalization vs. Deprofessionalization: Building Standards for Legal Interpreting and Translating,” Opatija, 20–21 March 2015. Retrieved March 31, 2015 from http://www.eulita.eu/professionalization-vs-deprofessionalization-building-standa rds-legal-translators-and-interpreters. Skaaden, H. (2013). Assessing interpreter aptitude in a variety of languages. In D. Tsagari and R. van Deemter (Eds.), Assessment issues in language translation and interpreting. Frankfurt, Germany: Peter Lang Edition. Springer, C. (2009). The main features of the Austrian Court Interpreters Act – A model for future developments. Presentation at the EULITA Conference on Aspects of Legal Interpreting and Translation. Lessius University College, Antwerp, Belgium. Retrieved January 13, 2016 from http://www.eulita.eu/main-features-austria n-court-interpreters-act-model-future-developments. Tipton, R. and Furmanek, O. (2016). Dialogue interpreting. London and New York: Routledge. Torstensson, N. and Sullivan, K. (2011). The court interpreter: Creating an interpretation of the facts. International Journal of Law, Language & Discourse, 1(3), 59–83. Weller Ford, G. (1992). Situación y perspectivas de lenguas indígenas, traducción e interpretación en México. In M. Valiquette (Ed.), Proceedings of Translating in North America – A community of interests (pp. 126–139). Montreal: Regional Center for North America – RCNA/FIT.

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Legal traditions of the world

The role played by the interpreter in the different phases of litigation is a function of the legal system prevailing in the country in question, and of the specific laws and regulations governing interpreted proceedings. In this chapter we will examine the major legal traditions of the world, the influence they have on each other, and the way they affect people’s daily lives. You do not need to be an expert in comparative law to be a competent court interpreter. However, you should be alert to the expectations of the individuals for whom you interpret, as some of them may make assumptions based on the way things are done in their home country. In case of any doubt, rather than taking it upon yourself to provide an explanation, simply notify the judge or attorney that there may be a misunderstanding and allow them to clarify.

Laypersons and the law People usually come into contact with lawyers and the courts only when they are accused of a crime, are the victim of a crime, or are engaged in a dispute with someone – never a pleasant experience. Moreover, lawyers have earned a reputation for obfuscation. Most societies’ legal systems are closely related to their religious traditions, and both are the product of centuries of cultural and moral evolution. The language of the law is thus steeped in tradition, full of archaic expressions, weighed down by scholarly reasoning, and shackled with deeply entrenched formulas that no one dares to change (Mellinkoff, 1963). Legal reforms often include efforts to simplify the language of legislation and legal documents, as evidenced by the “plain English” movements in the United States and the United Kingdom (see, for example, the Plain Writing Act, 2010). González-Ruiz (2014) reports similar efforts in Spanish-speaking countries. Even in China, Maoist reformers ordered that all court documents be written in “colloquial simple language” rather than the traditional legal style (Ladany, 1992, p. 57). Despite these efforts, legal professionals still seem to be out of touch with the ordinary people who must do business with the courts, however unwillingly. The barriers that already exist between the average citizen and the legal system become even greater when that person does not share the predominant

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language and culture of the country in question. In these circumstances, as a court interpreter you will have to bridge the gap not only between languages and cultures, but also between legal traditions. For this reason, you should have some familiarity with comparative legal systems. Every country in the world has its own way of establishing and enforcing rules of behavior for its citizens. Scholars have identified many common features within that diversity, and have classified the world’s legal systems into two main traditions, Civil Law and Common Law. (Important note: In this chapter we are using the term Civil Law, with the initial letters capitalized, to identify the legal tradition discussed here; elsewhere in this book, particularly in Chapter 4, the term will be used in the lower case when it refers to the litigation of private rights and remedies.)

Civil Law The Civil Law tradition can be traced back to the Corpus Juris Civilis of the Roman Empire, beginning with the publication of the XII Tables in Rome in 450 B.C. For that reason, the term Roman Law is often used for this tradition as well. When later European empires established colonies throughout the world, they created institutions that survived even after the colonies gained their independence. Consequently, Civil Law today prevails not only in Europe, but also in Central and South America and much of Asia and Africa (Glenn, 2000). It is also found in enclaves of the Common Law world (Louisiana, Puerto Rico, and Quebec, for example). In addition, the Western European experts who developed the principles of international law and designed the international courts of the League of Nations, the United Nations, the European Union, and other multinational organizations, were heavily influenced by the Civil Law tradition. The fall of Rome in the fifth century A.D. did not mark the end of the influence of Roman law on Europeans. During the Middle Ages, Germanic invaders spread Roman legal concepts, colored by their own traditions and customary law, among the peoples of Europe. Christian canon law also influenced the development of European legal systems. During the period known as the Enlightenment in the eighteenth century, philosophers further refined the concepts embodied in the Romano-Germanic tradition and established the principles that now form the basis of the world’s legal systems. These principles have become so indelibly etched in human consciousness that they are now taken for granted, but in the eighteenth century they were considered revolutionary. Among these concepts is the rule of law, that is, the notion that a society’s rules should be written down and enforced consistently for everyone, rather than being subject to the whims of whoever is in power at the moment. It stems from the parallel theses nullum crimen sine lege (no crime without a law) and nullum poena sine lege (no penalty without a law), which were first expressed by Cesare Beccaria in his 1764 work Of Crimes and Punishments. Throughout Europe, newly emerging nations began drawing up written laws, or codes, that incorporated the political and philosophical ideas of the time.

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On the other hand, eighteenth century philosophers also built on the Roman concept of jus naturale (natural law), which postulated that certain rules of behavior derived from human nature could be identified as universals, independent of the enacted laws of any one nation (known as positive law). These scholars explored the conflicts that might arise between what the law says and what is inherently right or just. The French and American Revolutions were inspired by the theory that mankind has certain inherent rights that transcend the laws of regimes in power. The Civil Law tradition’s approach to crime and punishment represented the culmination of efforts to move away from private vengeance by establishing that public officials rather than individuals would be the accusers, thereby relieving the victim of the responsibility of pursuing the offender, and placing the power of the government behind the quest for justice. In addition, the judge, an independent professional, was given the authority to gather evidence (both against and in favor of the accused) and to control the nature and objectives of the inquiry in secret proceedings, secrecy being considered necessary to protect victims from powerful individuals whom they accused of crimes. Because these inquisitorial powers were often abused, subsequent legal reforms lifted the veil of secrecy and gave the accused more participation in the proceedings. Nevertheless, in Civil Law systems, the judge remains a central figure in the investigation of crimes and the presentation of evidence in private disputes. Two codes in particular, the French Civil Code of 1804 and the German Civil Code of 1896, had a great impact on legal thought not only in Europe, but throughout the world. According to Glendon et al. (1999, pp. 41–42), Both were grounded in nineteenth century European-style liberalism. That is, they were infused with then current notions of individual autonomy, freedom of contract and private property. But over the course of the nearcentury that separated the two codes, society had been changing profoundly. Industrialization and much social unrest had intervened. Thus, while the German Civil Code still resembled the French in its solicitude for private property, freedom of contract and the traditional family, it also reflected a number of new developments that had occurred since 1804. The French code was written in simple terms so that the average person could understand it, whereas the German code was a highly complex codification of legal concepts accessible only to trained experts. Though they differ from each other in approach, each has contributed key elements to modern legal systems all over the world. French revolutionary ideas and German legal science are considered “the two principal tributaries to the modern civil law tradition” (Glendon et al., 1999, p. 44). The most distinguishing features of the Civil Law tradition, then, are that all laws are written down in codes that impose strict rules of procedure and guidelines to ensure uniform and predictable outcomes; and that within the limits of those guidelines, judges exercise a great deal of control over the

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litigation, though they are limited to applying the provisions of the codes and do not become a source of law themselves.

Common Law The Common Law tradition traces its roots to England and the Norman invasion of 1066, and was developed primarily in England. It came to be called common because in the Middle Ages, law was a local phenomenon, and in the twelfth century King Henry II for the first time instituted a system that was common to all parts of his realm. Common Law is also known as unwritten law, because it is derived from a body of customary law based on judicial decisions rather than codes or statutes. When the Common Law legal system was exported to British colonies in the eighteenth and nineteenth centuries, new elements were incorporated in keeping with current trends. Today the tradition is predominant in the legal systems of the United Kingdom, Ireland, the United States, Canada, Australia, and New Zealand, and it also has a major influence in the former British colonies of Asia and Africa. Common Law is also sometimes known as judge-made law, because it adheres to the principle of stare decisis (the decision stands), meaning that judges are bound to follow the decisions made by other judges in similar cases. Judicial decisions are important sources of law in other systems as well, but there they tend to be advisory rather than mandatory. Another unique feature of Common Law (though it has now been adopted and adapted for criminal cases in many countries) is the lay jury. In contrast to the Civil Law tradition, in which a judge or panel of judges decides cases, in the Common Law, it is usually a jury of ordinary citizens that issues the verdict. Critics of Common Law say that it is much less predictable, and therefore more capricious and subjective, than Civil Law because judges are given the power to interpret the law, and because ordinary citizens untrained in the law (and therefore subject to being swayed by canny lawyers) are given the final say with respect to guilt or innocence. The counter-argument is that involving citizens in the legal system ensures against abuse by legal professionals who are not answerable to the public and can easily lose touch with the man in the street. Merryman and Clark (1978) identify three other predominant elements that characterize Common Law proceedings: 1) concentration, meaning that all evidence is presented in a single event, the trial; 2) immediacy, in that the trier of fact actually sees and hears evidence first-hand, rather than reading reports and affidavits; and 3) orality, referring to the fact that witness testimony is given live in public proceedings. There is an increasing trend in Civil Law countries toward adopting these features as well, however. For example, Germany has gradually modified its legal system in a way that makes its criminal proceedings much more similar to the Common Law model (Huber, 1996; Weigend, 2011). Another oft-mentioned aspect of the Common Law tradition is that it is accusatorial and adversarial, as opposed to the inquisitorial approach taken under Civil Law. In an accusatorial system, the prosecutor has the burden of

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proving the charges to a neutral referee (consisting of the judge, who enforces the rules of procedure, and the jury, which decides on the facts). The trial is a contest between two equal sides, each trying to win a favorable ruling; hence the term “adversarial.” As noted earlier, in an inquisitorial system, the judge plays an active role in the fact-finding stage prior to reaching a decision, though the judge involved in the investigative stage is not the same one who issues the final judgment. Anthropologists consider the accusatorial approach to be the first substitute for private vengeance in an evolving society, as the right of accusation extends from the wronged individual to his family, his clan, and the entire society. In the modern form of accusatorial justice, the wronged party is represented by the public prosecutor, who uses the powers of the state (i.e., law enforcement agencies) to investigate the offense. The inquisitorial system is seen as a further step away from private vengeance because it is more impersonal and technocratic (Merryman and Clark, 1978; also see Glenn, 2000). These distinctions are important for gaining some historical perspective on different legal systems, but Merryman and Clark (1978, p. 694) point out that the law is becoming increasingly uniform throughout the world, particularly with regard to criminal procedure: In a sense it can be said that the evolution of criminal procedure in the last two centuries in the civil law world has been away from the extremes and abuses of the inquisitorial system, and that the evolution in the common law world during the same period has been away from the abuses and excesses of the accusatorial system. The two systems, in other words, are converging from different directions toward roughly equivalent mixed systems of criminal procedure. Judicial systems represent an attempt to rationalize dispute resolution, and lawyers, who value reason, tend to adopt structures that appear to them to be the most reasonable. As a result, in procedural law, there is a “general tendency for the judicial systems of various countries to advance and to keep pace with one another, which results in the increase of universal elements” (Tanaka, 1976, pp. 445–446). Moreover, Glenn points out that “their identities are not mutually exclusive ones. The boundaries which define them are not impregnable” (2000, p. 329). A case in point is the judicial systems of several Latin American countries, which have introduced major adversarial features despite their inquisitorial legal traditions. Thanks to a World Bank initiative to assist developing countries in establishing efficient and effective justice systems (World Bank, 2012), as well as efforts by the Inter-American Development Bank to modernize the administration of justice in Latin America and the Caribbean (Cordovez, 2007), a wave of reforms took place throughout Latin America in the 1990s and into the 2000s. The goal was to increase transparency and reliability in the countries’ legal systems by introducing the concepts of immediacy, concentration, and orality (the very characteristics of Common Law proceedings

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that had been identified by Merryman and Clark in 1978). As a result, justice has become somewhat speedier, special judges ensure due process guarantees, and oral proceedings are now common in many countries. Even lay judges and jury trials have been introduced in a few. In contrast, the United Kingdom provides an example of a classic adversarial legal system adopting some inquisitorial features. Several common offenses are now tried summarily by a panel of lay magistrates rather than a jury. In general terms the system of criminal justice in England and Wales remains an exemplar of the adversarial approach. However, modifications are being introduced all the time, and most of them involve movements, however slight, away from pure adversarialism. (Ashworth, 2011, p. 534) Regardless, within the general framework of legal systems, each country has a unique set of institutions that maintain elements of its particular cultural heritage. As Merryman and Clark (1978, p. 3) emphasize, a legal tradition is not a set of rules of law about contracts, corporations, and crimes, although such rules will almost always be in some sense a reflection of that tradition. Rather it is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught. The legal tradition relates the legal system to the culture of which it is a partial expression. It puts the legal system into cultural perspective.

Other legal traditions Although most countries today have a combination of Common Law and Civil Law features, it is important to consider other factors such as geography, religion, and the economic system to understand their influence on current legal practices and attitudes towards the law. Glenn (2000) notes that older, indigenous systems exist within other major traditions, since societies have always sought to ensure harmony within their own boundaries. Africa According to Menski (2006, p. 380), A plurality-conscious perspective on the laws of Africa cannot ignore the people of Africa and their many cultures and languages. But can one even speak of ‘African law,’ given this immense diversity? The short answer is that ‘African law’ is merely a kind of ethnic label and the collective term ‘African laws’ comprises evidently many different types of legal systems.

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The legal systems of African countries are shaped by three sources: indigenous traditions, European colonial powers, and Islam. For example, Egypt was heavily influenced by sharia law before it adopted a new legal system in 1883 following the French model (Reza, 2011). South Africa, on the other hand, has a hybrid system based on both the Dutch (Civil Law) legal tradition and the English (Common Law) tradition, in addition to uniquely South African elements (Burchell, 2011). Some nations have woven the threads of these three sources into an integral structure, while others have parallel court systems dealing with different aspects of the law (such as penal vs. family matters). In the latter countries, citizens may be able to choose whether they want their marriage, for example, to be governed by the rules of Islam, an indigenous tradition, or the civil courts. Virtually all African countries now have modern codes covering penal, commercial, and administrative matters. In practice, however, the application of the law may be guided by certain indigenous traditions, including an emphasis on conciliation and arbitration rather than litigation, vicarious liability (meaning that the entire family, clan, or village is held responsible for the acts of an individual), acceptance of ancient practices such as polygamy, and recognition of the family or clan as a legal entity. Menski (2006) cites three distinctive elements of African countries’ laws: 1) the history of colonization mentioned above, 2) many countries’ attempts to use law as a tool for development, and 3) indigenous customary laws that are still an integral part of their legal systems. Hinduism Indian constitutional law today is “deeply influenced by traditional Indian and often explicitly Hindu concepts of governance” (Menski, 2006, p. 259). Hindu law dates back to the establishment of the Veda (meaning sacred knowledge), which existed side by side with indigenous beliefs and was taught by the Brahmans. The Veda began as an oral tradition but was eventually written down in texts such as the dharmasastras (Glenn, 2000). The latter are known as the science of righteousness, which is inextricably linked to personal, family, and social life for followers of the Hindu religion. It is observed by Hindus all over the world when dealing with matters of personal status (e.g., marriage, domestic relations, succession) and daily living (e.g., diet and dress). More than a theology, the Hindu tradition interweaves social, spiritual, and legal teachings, placing a heavy emphasis on group identity rather than individualism. In India, where 80 percent of the population is Hindu, the formal legal system governs penal, commercial, and administrative matters, but village justice often prevails at the local level. As a result, there is heavy emphasis on consensusbuilding and maintaining harmony rather than identifying winners and losers in a dispute. In addition, kinship and caste take precedence over other relationships, and some laws enacted by the government with respect to issues such as the age of marriage, divorce, women’s rights, and discrimination against lower castes may be simply ignored. Although the formal legal system of

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India is still largely shaped by the country’s colonial past, with English being an official language along with Hindi, “the indigenous nature of modern India’s Constitution has gradually become more obvious and has visibly and invisibly been reinforced” (Menski, 2006, p. 260). Islam The law of Islam, sharia, provides rules of conduct for every aspect of Muslim life. It is a highly developed and complex legal tradition that is reflected increasingly in the formal legal systems of predominantly Muslim countries. The law of the family and the law of succession are “profoundly marked” by Arab indigenous traditions (Glenn, 2000, p. 166). According to Hassan (1981, p. 95), the reformative principles of Islam are concerned with a system of directions for human welfare (seeking justice, good deeds, equality, human rights, and brotherhood and aimed at forbidding aggression and providing defense thereto), improving the status of the weaker sex and the weak, upholding the sanctity of private ownership, fulfilling contracts and outlawing deceit, and distinguishing the public and private rights in penal matters. As with other religious doctrines, the tenets of Islam in modern times are usually applied only to personal matters, leaving matters of penal, commercial, and administrative law to secular government authorities. According to Weiss (1998, as cited in Merryman et al., 2010, p. 12), As a result of years of colonial administration, most Muslim countries now have legal systems that are essentially European in provenance. The Islamic law of personal status remains in force in most areas only by virtue of legislative enactment and incorporation into civil codes inspired by European models and containing many modifications of the traditional law. In countries with predominantly Muslim populations, however, Islam is far more influential in personal and family affairs than other religions are in other countries. In fact, one country, Pakistan, owes its very existence to Islam and from the outset sought to “Islamize” its legal system and “cleanse it of impurities introduced by colonial domination and Hindu culture” (Menski, 2006). In Iran, the Constitution provides: “All civil, penal, financial, economic, administrative, cultural, military, political and other laws and regulations must be based on Islamic Criteria” (as cited in Tellenbach, 2011, p. 321). However, another country where the vast majority of the population is Muslim, Turkey, “officially abolished Muslim law during the 1920s and constructed a secular legal system following Western models” (Menski, 2006, p. 279). At any rate, the legal precepts of Islam are very similar to those of Civil and Common Law with respect to matters such as the ownership of property and the enforcement of contracts. There are some major differences in penal law, however. In Islamic

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states, murder is still considered a private offense punishable by the victim’s family, for example, and women’s testimony is considered less valid than men’s, with some countries absolutely prohibiting women as witnesses. Confucianism The philosophy and teachings of Confucius date back to the fifth century B.C., yet they are still observed throughout East and Southeast Asia. Ladany (1992, pp. 1–2) contends that despite numerous upheavals in Chinese history, for 2,000 years the Chinese people enjoyed cultural continuity thanks to a “stable system of laws that remained fundamentally unchanged.” Some concepts that were developed in traditional Confucian law, such as negligence, cumulative offenses, and consideration of the defendant’s personal background when imposing criminal sentences, are now accepted throughout the world. Confucianism, like many other traditional belief systems, emphasizes social harmony based on ordered relationships and situations (Glenn, 2000). According to Confucius, peaceful life in society is ensured not by law but by morality, so the function of the law is to educate the citizenry in righteous conduct in order to maintain harmony and balance. In many East Asian countries, ancient Confucianist principles still hold sway, though in China the communists have tried to give priority to socialist ideals and eradicate practices they consider decadent. Mao, in particular, was very distrustful of the law and the legal system, asserting that law was the “weapon of the dictatorship” (Ladany, 1992, p. 54), referring both to the system he overthrew and his own regime. He rejected almost every element of the legal institutions that were in place when he took over, although subsequent reforms have restored some of them. Still, Article 2 of the current Criminal Law of the People’s Republic of China states that the purpose of the Chinese legal system is to protect first the socialist order, and second, individual rights (Criminal Law of the People’s Republic of China, 1997). Some elements of the traditional Chinese system were retained in modified form, however, in what is known as “a socialist legal system with Chinese characteristics” (Menski, 2006, p. 494). Glenn (2000) writes that since the late 1970s socialist principles were reunited with Confucianism to promote loyalty and preserve social structures, and Menski (2006) argues that there is much evidence from various quarters to the effect that post-1979 ideological restructuring in China does not involve a total refusal of Confucian principles and values, but their redefinition and re-evaluation within the overarching framework of China’s socialism, which has become the dominant legal norm. (p. 589) Japan’s legal system still reflects many of these notions, and throughout their history the Japanese have been “subject less to formal legal controls than to

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informal community sanctions” (Haley, 2011, p. 394). The Penal Code of 1907 was strongly influenced by German law, and though significant features were introduced during the American occupation after World War II, the 1907 code remained “largely unchanged” (Haley, 2011, p. 394). Although elaborate rules are in place for civil and criminal procedure, the Japanese have a particular aversion to litigation, and would much rather resolve disputes through conciliation. Japan is no different from any other nation in the world, in that the everyday application of the law is shaped by the attitudes and customs of ordinary people, even if this application contradicts the letter of the law. Attempts were made to introduce the jury system, for example, but it never took hold. Wilson (2014) states that litigation is less common in Japan than in other countries because of the pervasiveness of honor, shame, and conflict aversion throughout the culture, combined with an emphasis on societal harmony and apologies. The result is that informal means of conflict resolution often take precedence over the law and formal legal mechanisms. Nonetheless, major reforms were instituted in 2001 to make the justice system more accessible to the public. Following up on this effort, “lay assessors” (citizen judges) were introduced in 2004 to increase public participation and faith in the judiciary (Wilson, 2014).

International law and supranational courts In the sixteenth and seventeenth centuries, legal scholars began developing the principles of international law, or the law of nations, in order to resolve disputes that arose between two or more sovereign nations. The concepts they advanced were later incorporated into the institutions of the multinational organizations that were formed in the twentieth century, both worldwide (e.g., the United Nations, the International Labor Organization, the World Trade Organization) and regional (e.g., the European Union, the Organization of American States, the Association of South-East Asian Nations). There are now a variety of courts whose jurisdiction transcends national borders, including the International Court of Justice and the war crimes tribunals set up by the United Nations to prosecute individuals in trouble spots such as Rwanda and the former Yugoslavia, as well as the International Criminal Court that was created in Rome in 1998 for the purpose of providing a permanent venue to prosecute major crimes on an international level. Other examples are the European Court of Justice and the European Court of Human Rights in the European Union. The existence of these institutions has promoted the harmonization of national legal systems as member states strive to comply with the norms of the multinational bodies to which they belong, sometimes with fierce resistance from nationalist groups. It is important to point out, for our purposes, that these courts rely heavily on the services of translators and interpreters to carry out their work. Although most of them have only a few official languages (for example, the International Criminal

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Court has six), documents and testimony from all over the world require the services of translators and interpreters for hundreds of languages.

Conclusion Despite the superficial similarity of the formal laws currently in place throughout the world, the practical application of those laws still varies considerably from one country to another, and from one ethnic group to another, depending on religious traditions and custom. When you work as a court interpreter, you will be mediating between two or more cultures, so it is important for you to understand not only the legal systems of the limited language proficient (LLP) individual’s country of origin and his new host country, but also the prevailing attitudes toward the law in his community. Again, having this knowledge does not entitle you to intervene to provide explanations on your own, but it enables you to anticipate misunderstandings and advise legal professionals that further explanations may be necessary. In this chapter, we have reviewed the two predominant legal models, Civil Law and Common Law. We have noted that a large number of countries have adopted one or both of these models with adaptations to meet local needs, and we have discussed other religious and philosophical traditions that have an impact on the law. And finally, we have discussed international tribunals and their jurisdictions.

Additional study activities 1 2 3

4

What misunderstandings might arise between the groups you interpret for because of different legal traditions? Give an example of how the daily practices of a given ethnic community conflict with the legal norms governing that community. Name a feature of the legal system prevailing in your country that derives from the Civil Law tradition. Name one that derives from the Common Law tradition. What role do you think laypersons should play in a country’s legal system? State the reasons for your position.

Suggestions for further reading In connection with the recent legal reforms in Latin America, the cases of Bolivia and Argentina are described in an issue of the journal published by the Centro de Estudios de Justicia de las Américas (CEJA), Sistemas judiciales, which was devoted to jury trials (Letner, 2013 and Orias Redondo, 2013). Elias-Bursac´, E. (2015). Translating evidence and interpreting testimony at a war crimes tribunal. London: Palgrave. Glendon, M., Gordon, M., and Carozza, P. (1999). Comparative legal traditions in a nutshell. St. Paul, MN: West Group.

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Glenn, H.P. (2000). Legal traditions of the world. Oxford, New York: Oxford University Press. Heller, K. and Dubber, M. (Eds.) (2011). The handbook of comparative criminal law. Stanford, California: Stanford Law Books. Menski, W. (2006). Comparative law in a global context: Legal traditions of Asia and Africa. Cambridge: Cambridge University Press. Merryman, J., Clark, D., and Haley, J. (2010). Comparative law: Historical development of the civil law tradition in Europe, Latin America, and East Asia. New York: LexisNexis. Merryman, J., Clark, D., and Haley, J. (2015). The contemporary civil law tradition: Europe, Latin America, and East Asia. New York: LexisNexis.

References Ashworth, A. (2011). United Kingdom. In K. Heller and M. Dubber (Eds.), The handbook of comparative criminal law (pp. 531–562). Stanford, California: Stanford Law Books. Burchell, J. (2011). South Africa. In K. Heller and M. Dubber (Eds.), The handbook of comparative criminal law (pp. 455–487). Stanford, California: Stanford Law Books. Cordovez, C. (Ed.) (2007). Justicia: Un vínculo pendiente entre Estado, ciudadanía y desarrollo. Washington, DC: Inter-American Development Bank. Criminal Law of the People’s Republic of China. (1997). Retrieved January 14, 2016 from http://www.fmprc.gov.cn/ce/cgvienna/eng/dbtyw/jdwt/crimelaw/t209043.htm. Glendon, M., Gordon, M., and Carozza, P. (1999). Comparative legal traditions in a nutshell. St. Paul, MN: West Group. Glenn, H.P. (2000). Legal traditions of the world. Oxford, New York: Oxford University Press. González-Ruiz, V. (2014). Trying to see the wood despite the trees: A plain approach to legal translation. In L. Cheng, K.K. Sin, and A. Wagner (Eds.), The Ashgate handbook of legal translation (pp. 71–88). Surrey, UK and Burlington, VT: Ashgate Publishing Company. Haley, J. (2011). Japan. In K. Heller and M. Dubber (Eds.), The handbook of comparative criminal law (pp. 393–413). Stanford, California: Stanford Law Books. Hassan, F. (1981). The concept of state and law in Islam. Washington, D.C.: University Press of America, Inc. Huber, B. (1996). Criminal procedure in Germany. In J. Hatchard, B. Huber, and R. Vogler (Eds.) Comparative criminal procedure (pp. 96–175). London: British Institute of International and Comparative Law. Ladany, L. (1992). Law and legality in China: The testament of a China-watcher. Honolulu: University of Hawaii Press. Letner, G. (2013). El juicio por jurados en la Ciudad de Buenos Aires. Sistemas Judiciales 9(17), 58–60. Mellinkoff, D. (1963). The language of the law. Boston: Little, Brown and Company. Menski, W. (2006). Comparative law in a global context: Legal traditions of Asia and Africa. Cambridge: Cambridge University Press.

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Merryman, J. and Clark, D. (1978). Comparative law: Western European and Latin American legal systems, cases and materials. Indianapolis, New York, and Charlottesville, VA: The Bobbs-Merrill Company, Inc., Publishers. Merryman, J., Clark, D., and Haley, J. (2010). Comparative law: Historical development of the civil law tradition in Europe, Latin America, and East Asia. New York: LexisNexis. Orias Redondo, R. (2013). Jueces ciudadanos: Democratizando la justicia en Bolivia. Sistemas Judiciales 9(17), 26–37. Plain Writing Act of 2010, Public Law 111–274. (2010). Retrieved January 14, 2016 from https://www.gpo.gov/fdsys/pkg/PLAW-111publ274/pdf/PLAW-111publ274.pdf. Reza, S. (2011). Egypt. In K. Heller and M. Dubber (Eds.), The handbook of comparative criminal law (pp. 179–208). Stanford, California: Stanford Law Books. Tanaka, H. (Ed.) (1976). The Japanese legal system: Introductory cases and materials. Tokyo: University of Tokyo Press. Tellenbach, S. (2011). Iran. In K. Heller and M. Dubber (Eds.), The handbook of comparative criminal law (pp. 320–351). Stanford, California: Stanford Law Books. Weigend, T. (2011). Germany. In K. Heller and M. Dubber (Eds.), The handbook of comparative criminal law (pp. 252–287). Stanford, California: Stanford Law Books. Wilson, M. (2014). Seeking to change Japanese society through legal reform. In J. Kingston (Ed.), Critical issues in contemporary Japan. London and New York: Routledge. World Bank. (2012). Law and justice institutions. Retrieved January 15, 2016 from http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTLAWJUSTINST/ 0,,contentMDK:23138640~menuPK:1974078~pagePK:210058~piPK:210062~the SitePK:1974062,00.html.

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Criminal and civil procedure

As a court interpreter, it is essential for you to know how cases are processed in the courts where you work, not so that you can explain procedures to the clients for whom you interpret, but to enable you to understand the context in which you are operating and anticipate misunderstandings that may arise. You may be the only interpreter involved in a given case, from police investigation and arrest through prosecution, conviction, and sentencing; or you may share the work with various interpreters who are retained at different phases. It is particularly important for you to understand the various stages of the proceedings if you come into a case in the middle. In this chapter we will look at how criminal and civil cases are processed, and then we will examine the role of the interpreter as a function of these procedures and in light of the different legal traditions presented in the preceding chapter. As stated in Chapter 3, to avoid confusion with the term “civil,” the name of the legal tradition will be capitalized and the type of law governing private actions will be written in lower case letters. According to the online Legal Encyclopedia of the Legal Information Institute (2016, n.p.) at Cornell University Law School, the difference between criminal law and civil law is the following: Criminal law involves prosecution by the government of a person for an act that has been classified as a crime. Civil cases, on the other hand, involve individuals and organizations seeking to resolve legal disputes. In a criminal case, the state, through a prosecutor, initiates the suit, while in a civil case the victim brings the suit. Persons convicted of a crime may be incarcerated, fined, or both. However, persons found liable in a civil case may only have to give up property or pay money, but are not incarcerated.

Criminal procedure Most people, even the well-educated, do not know how the courts operate in their own country, simply because they do not have occasion to come into contact with the judicial system. In fact, they may suffer from serious

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misconceptions if their only exposure to the law comes from television and movie portrayals, especially if these are imported. It has been reported, for example, that having watched countless American police dramas in which suspects are advised of their “Miranda rights,” many television viewers and movie goers in other countries assume that they, too, have those rights. Below we will follow a criminal case step by step, from arrest to sentencing, to explain generic criminal procedure. You should learn the specific rules of criminal procedure in the courts where you will be working. (Note that the term penal is used as a synonym of criminal, and in many jurisdictions the law governing these matters is known as the penal code.) Investigative phase A crime is usually reported to the police by the victim or the victim’s family. In many countries, a distinction is made between private offenses, which can be prosecuted only on the victim’s initiative, and public offenses, which are automatically prosecuted by the public authorities once the crime comes to their attention, regardless of the victim’s wishes. In either case, the police gather initial facts and interview witnesses, and then report their findings to the public prosecutor’s office. An investigation is opened, conducted either by the police under the direction of the prosecutor in Common Law countries, or, in many Civil Law countries, by prosecutorial authorities and the police (often a special corps known as the judicial police), under the direction of a special judge. This judge is known as an investigative judge or examining magistrate (juge d’instruction in France, where the concept originated). Recently an additional type of judge has been added to many Latin American countries’ criminal justice systems, the juez de garantía. In Chile, for example, this judge ensures that the rights of all parties, including suspects, witnesses and victims, are upheld during the pretrial phase (Ministerio de Justicia, 2016). During the investigation, witnesses are interviewed and evidence is collected and tested in the crime lab, if applicable. The prosecutor or the investigative judge (or juez de garantía, as the case may be) must determine whether there is enough evidence to meet legal standards for continued prosecution. In the Civil Law tradition, the investigative judge has an affirmative obligation to gather evidence in favor of the accused as well as evidence against him, whereas the prosecutor in a Common Law system usually concerns himself only with evidence of guilt. Of course, if he comes across exculpatory evidence he must pursue that as well, to the extent of dropping the case altogether if appropriate. Once the perpetrator has been identified to the satisfaction of the prosecutor or the investigative judge, formal charges are filed and an arrest warrant is issued. In most countries, the accused has the right to remain silent, and to have defense counsel present if he consents to questioning. He also has the right to be informed of the charges against him. After being arrested, the defendant may be released on bail (conditional release from custody provided

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certain terms are met; in the United States, a pledge of money or property must be made to guarantee appearance in court) or on personal recognizance (word of honor), or he may remain in custody under preventive detention. Usually there is a statutory limit to how long the defendant can be held before his case is heard by a judge, and according to the precept of habeas corpus, the judge must determine whether his arrest and detention are lawful. In many Civil Law countries, the victim, or complainant, may be considered a civil party to the penal action, and is entitled to be represented by counsel. In the case of serious offenses, as an intermediate step, a formal showing of probable cause must be made to justify proceeding further with the prosecution. In Common Law systems, the prosecutor must present evidence to a grand jury, which will decide whether to indict (accuse) the defendant, or, alternatively, to a magistrate in a lower court, who will decide whether to hold the defendant to answer and order him to stand trial in a higher court. In Civil Law systems, the report of the investigative judge amounts to a showing of probable cause, though no equivalent term is used. In both systems, less serious offenses are often dealt with in a streamlined, or summary proceeding, in which no intermediate step is necessary prior to the trial. Pretrial phase Most court systems have a hierarchical structure, with specific areas of competence assigned to each court. Courts of limited jurisdiction (known by names such as magistrate’s court, summary court, municipal court, local court, or police court) hear minor cases and showings of probable cause in more serious cases. Often cases are heard by a single judge in these courts. Courts of general jurisdiction (known as district courts, superior courts, or crown’s courts) hear more serious cases. In Civil Law countries, courts of general jurisdiction often have collegiate panels of judges who consider cases submitted to them on the basis of the report of the investigative judge. Offenses are classified according to their seriousness; a traffic offense or a petty theft would be considered minor, a burglary or assault would be treated as a more serious offense, and a murder or a rape would be considered the most serious type of crime. For example, in the United States the respective categories are infraction, misdemeanor, and felony; in France, they are contravention, délit, and crime. Often the prosecutor or investigative judge has some discretion in deciding how to classify a given offense, depending on the circumstances of the case and the defendant’s background. In England these are known as either way offenses. When the accused makes his first appearance in court, his identity is confirmed, defense counsel is identified, the charges are read, and often the accused is advised of his rights as a criminal defendant. In Common Law countries, at his initial appearance (called an arraignment in many jurisdictions) the defendant must enter a plea, meaning an answer to the charges; he may plead guilty, not guilty, or, in some jurisdictions, no contest or nolo contendere

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(indicating that he will not dispute the prosecution’s allegations, but wishes to protect himself from civil liability in case the victim sues him in civil court). There is no plea of innocent, although that term is often erroneously used in the press, because the defendant is presumed innocent until proven guilty. In Civil Law countries, at the initial appearance the defendant is given an opportunity to make a statement to the judge explaining his position. After the formal accusation, the defense and the prosecution begin developing their cases and exchanging information in what is known as the pretrial phase. In Common Law countries, during this phase the parties periodically appear in court to make motions, that is, specific requests for rulings on evidence, discovery (revealing information to the opposing party), a postponement, appointment of experts, and so on. The other party is always given an opportunity to respond to a motion, and the defendant is always present to hear the motions, arguments, and rulings. During this period, the defense and prosecution may engage in plea bargaining, negotiations to avoid a trial by reducing the charges or promising lenient treatment in exchange for a guilty plea by the defendant. If the defendant does not accept the prosecutor’s offer, they proceed to trial. In the Civil Law tradition, the pretrial process is considered the “heart” of the prosecution of crimes. In France, for example, “the crucial stage of decisionmaking remains (to a far greater extent than in Anglo-American jurisdictions) embedded in the bureaucratic early phases of the procedure” (Vogler, 1996, p. 17). However, Elliott (2011) notes that elements of the adversarial process have been introduced recently to ensure better protection of civil rights. The investigative judge gathers information by questioning witnesses and ordering the collection and testing of evidence. The judge’s summaries of witness statements and the reports on the evidence are compiled in a dossier. This investigation is secret, and the defense and prosecution usually are not present when the judge examines witnesses. They are not allowed to see the dossier until the case is ready for trial. The investigative judge’s report must be reviewed by an independent body (the Chambre d’Accusation in France) to ensure there is enough evidence to proceed to trial. In Civil Law countries that do not have an investigative judge, such as Japan and Germany, the pretrial phase is more open, with both sides gaining access to each other’s evidence. Although technically there is no such thing as plea bargaining in legal systems that follow the Civil Law tradition, many countries have a mechanism for what is known as consensual disposal of cases in order to avoid the trouble and expense of a formal trial (Huber, 1996; Weigend, 2011). The trial The trial in a criminal case is conducted very differently in Civil Law and Common Law systems. The Common Law criminal trial, perhaps carried to the ultimate extreme in the United States, is viewed by many as a “sporting match between the attorneys,” while Americans counter that other countries’

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courts conduct trials merely as a “means of convicting the accused at any price” (Merryman and Clark, 1978, p. 705). As we will see below, both of these characterizations are exaggerations. Under Civil Law There is a prevalent misconception that in Civil Law systems, the defendant is presumed guilty until he proves himself innocent, a false impression that probably stems from the fact that the trial is very brief and usually results in conviction of the accused. In fact, the Civil Law trial is simply the last step in a long process of gathering and presenting evidence, which will immediately cease if at any point it becomes apparent to the investigative judge or the prosecutor that the defendant is innocent (in that case, the charges are dismissed). There are no surprises or dramatic outbursts, because the trial amounts to a summarization of evidence already known to the parties. The investigative judge’s final report is given to both defense and prosecution well before the trial so that they can prepare their cases. The real purpose of the trial is to determine the sentence to be imposed, since by this time there is little question of the defendant’s guilt (Heller and Dubber, 2011). A typical criminal trial in a Civil Law country proceeds as follows: First the charges are read, then the presiding judge informs the defendant of his rights and questions him on the facts of the case. Then the prosecution and the defense may be given an opportunity to address the court with opening statements. Following these oral arguments, any witnesses whose testimony is deemed admissible by the court are allowed to testify in a narrative form (often the testimony will focus on issues related to sentencing, such as prior criminal history and personal circumstances of the defendant). The witnesses may be examined by the presiding judge, based on questions submitted in advance by the attorneys. In some countries, witnesses may be questioned directly by counsel for the defense and prosecution; in others, all examinations are conducted by the judge. The presiding judge summarizes the testimony of each witness, and witnesses and attorneys are allowed to suggest changes if they feel the summary is not accurate. Sometimes physical evidence, known as exhibits, is examined at trial in addition to the oral evidence presented by witnesses. After the evidence is examined, the prosecutor, the defense attorney, and the victim’s counsel (if applicable) make oral presentations. Sometimes the accused also addresses the court. In most Civil Law jurisdictions, defendants are prohibited from testifying under oath, whereas witnesses usually take an oath to tell the truth before giving statements or testifying in court. These presentations generally focus on the sentence that should be imposed, with the prosecution arguing for rigorous punishment and the defense advocating leniency. Once all arguments have been completed, the panel of judges deliberates and issues a judgment, which includes the penalty to be imposed. Sometimes this takes place immediately; in other cases, there may be a waiting period

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before sentence is passed. In many countries, the panel consists of a combination of professional and lay judges or assessors (Heller and Dubber, 2011). Some Civil Law countries, such as France, even have randomly selected lay juries that hear evidence and reach a verdict together with the judges (Vogler, 1996). As noted above, lesser offenses may be tried in summary proceedings, usually before a single judge, and sentencing takes place immediately after the cases are presented. The judicial authority plays a very active role in determining how a Civil Law trial will proceed. According to Huber (1996, p. 110), “The fundamental duty of the court is to search for the truth and the participants have no control over the presentation of evidence nor any power to seek a discontinuance of the proceedings.” The court has an obligation to establish the facts independently of the cases presented by the parties, and can even summon witnesses on its own motion. In contrast, in Common Law countries the judge plays a more passive role. Hatchard et al. (1996, p. 184) describe the approach taken by the Common Law as follows: Central to the whole system is that the truth will emerge if equal adversaries are left to present their cases and then to test the evidence of the other party. The prosecution and the defense both separately prepare their own case, call, examine and cross-examine their witnesses. Some countries’ courts have a hybrid system. For example, Japan is considered to fall within the Civil Law family, but its trial procedure is adversarial, in that “parties take the initiative in gathering and offering evidence though the court may examine evidence if necessary” (Supreme Court of Japan, 2016a). Under Common Law Many people all over the world are familiar with the way Common Law criminal trials are conducted, having seen television or movie dramatizations or broadcasts of actual trials in the United States. The criminal trial is an attractive subject for writers, because it is very much like a stage play in which the story of the crime is reenacted for the audience – the jury – and attorneys employ all their persuasive powers to portray the facts in a certain light so that the jury will find in their favor. But dramatizations exaggerate certain aspects of the jury trial, and news coverage may distort the picture as well, so it is useful to review the main elements of Common Law trial procedure here. Although it is possible to have a trial without a jury in what is known as a bench trial – in which a single judge is the trier of both fact and law and, accordingly, issues both the verdict and the sentence – most trials are held before a jury. Ashworth (2011) reports that in the United Kingdom, an increasing number of minor offenses are triable only summarily, i.e., by a panel of three lay magistrates; and even some major offenses are tried by a judge alone where “the length or complexity of the trial would make it unduly

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burdensome for a jury” (p. 535). Assuming the trial is by jury, the first stage is the selection of that jury. Citizens who have been summoned for jury duty assemble in the courtroom and answer questions under oath to determine whether they are qualified to serve on the jury. Anyone who might have a bias for or against the defendant, because he knows individuals involved in the case, has been the victim of a similar crime himself, is prejudiced against anyone who requires an interpreter, or has some interest in the outcome of the case, is eliminated from the jury. In most jurisdictions, prospective jurors may be rejected if they do not have an adequate command of the language of the court, though sign language interpreters are usually provided for deaf jurors and in some parts of the United States, interpreters are also provided for Spanish-speaking jurors. Prospective jurors are warned that the trial may last several days, or even weeks or months in complex cases, and they are asked if they can make that commitment to the court. This questioning, called voir dire, may be conducted entirely by the judge, or partly by the judge and partly by the attorneys. The defendant is always present during jury selection and may express opinions to the defense attorney about particular prospective jurors. Both the defense and the prosecution are allowed to exercise a limited number of peremptory challenges, meaning that they can reject prospective jurors without stating the reason. It should be noted that in England and Wales, the defense is no longer allowed to make such challenges, and the prosecution rarely exercises them; whereas in the United States, these challenges are considered a very important part of the trial. Jurors may also be challenged for cause, provided that the challenger persuades the judge in oral arguments that there are solid legal grounds supporting the disqualification of the juror. After both sides are satisfied with the jury (or they have exhausted their allocation of challenges), the jury is sworn in. Most juries consist of twelve people, but in some cases in some jurisdictions, smaller juries are allowed. The trial begins with an opening statement by each side to give the jury an overview of the evidence that will be presented. The adversarial nature of the proceedings becomes apparent immediately, as the attorneys make persuasive speeches intended to encourage the jury to view the case in a certain light. These speeches may be very challenging to interpret for the defendant due to the wide range of registers and lexical items they tend to feature. Because the prosecutor has the burden of proof, the prosecution (known as the State, the People, or the Crown) presents its case first and the defense then responds with its own evidence. Prosecution witnesses may include the victim, eye witnesses, police officers, criminalists and other expert witnesses, and anyone who has knowledge of some aspect of the case. The prosecutor questions each witness in direct examination or examinationin-chief to elicit certain facts for the jury to hear. In important cases, witnesses may have undergone extensive preparation for their testimony (though the “coaching” of witnesses is forbidden), and in any case they will have told their story repeatedly by the time the case comes to trial. This may be the first time

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the defense has heard them, however. After all the facts have been laid out to the prosecutor’s satisfaction, the defense attorney begins the cross-examination, questions designed to shed a critical light on the witness’s testimony. After the cross-examination, the prosecutor is allowed to rehabilitate the witness in redirect, followed by recross, and so on, until the attorneys are satisfied that they have wrung every possible fact out of the witness. The process begins again with the next prosecution witness. In addition, at any point during the testimony, one side or the other may interrupt and raise objections if they think the rules of evidence are violated by a question or answer, and the judge will rule on the objection. Because jurors are not trained in the law, they do not know the rules for weighing evidence, and one side is likely to try to take advantage of that vulnerability, while the other side will object and ask that the judge intervene to ensure proper conduct. In addition to oral evidence, exhibits are also presented to demonstrate facts. These items can be as varied as a letter, a cancelled check, a bloody shirt, a bullet fragment, a recorded conversation, a test result, or a photograph. Each time one side wants to introduce an exhibit into evidence, the other side has an opportunity to object, and the judge rules on its admissibility. After the prosecution evidence has been presented, the prosecutor rests, and the defense has an opportunity to present its case. It is usually much shorter than the prosecution case, and in fact the defense may not call any witnesses at all. During this stage it is the defense attorney who conducts the direct examination of witnesses, and the prosecutor who cross-examines them. The defendant may or may not choose to testify, and the jury will be instructed not to consider the significance of a defendant’s decision not to testify. After the defense rests, the prosecution has one more opportunity to present evidence, known as rebuttal, by calling new witnesses or recalling previous witnesses to reinforce its case. Then each side makes a final argument to the jury, known as a summation or closing argument, another persuasive speech to convince the jury to vote for acquittal or conviction. After the summations, the judge instructs the jury on the law that it must apply to the facts it finds in the case, in a process known as the jury charge or jury instructions. The judge normally reads from a book of instructions especially written for the purpose of informing lay juries about certain aspects of the law. The language of these instructions tends to be very stilted and archaic, however, and they are also very challenging for interpreters. In each case, a different set of instructions is read, depending on what the attorneys and the judge agree upon. They include definitions of legal concepts such as circumstantial evidence and hearsay evidence, a listing of the elements of the offenses with which the defendant is charged (known as counts), and guidelines for jury deliberations. After the judge has read the instructions, the jury begins secret deliberations. Eventually, the jury votes on a verdict, guilty or not guilty, for each offense charged. In most penal cases, a unanimous verdict is required. A jury that fails to reach a unanimous verdict is called a hung jury, and in that

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case the judge must declare a mistrial. If the verdict is “not guilty,” the defendant is acquitted of all charges and is released. Any bail posted is exonerated, or returned. If the verdict is “guilty,” the defendant is ordered to return to court for sentencing, and bail will probably be applied toward any fine that is due. The sentence As noted above, in Civil Law systems the penalty is part of the ruling issued by the judges at the conclusion of the trial. In the Common Law system, the judge determines the penalty that will be imposed only after the jury finds the defendant guilty (except in the case of a bench trial). Thus, the term sentence refers only to the penalty, not the verdict; sometimes this distinction is difficult to make in translation. Normally, before passing sentence a judge will refer the offender to a probation officer, who will conduct a pre-sentence investigation to examine the defendant’s background and make a recommendation to the court. The probation report is given to the parties when they appear in court for sentencing, and each side is given an opportunity to address the court before the judge imposes the sentence. Penalties in criminal cases are very similar in Civil Law and Common Law countries. They may include a term of incarceration, part of which may be suspended for a period of probation or conditional release, restrictions on the offender’s activities and rights, a monetary fine, or community service. Corporal punishment has been outlawed in most of the world, and capital punishment is increasingly rare. Some states in the United States do impose the death penalty, but in those cases the judge does not issue the sentence. Instead, a special trial is held after the guilty verdict for the jury to decide on whether to impose the death penalty or life in prison. Death penalty sentences are automatically appealed. Appeals In modern legal systems, whenever a litigant is dissatisfied with the ruling of a trial court (court of original jurisdiction or court of the first instance), he can appeal that ruling to a higher court (court of appeals or court of the second instance). In some cases, especially when issues of constitutionality arise, the appeals court’s decision can, in turn, be appealed to the supreme court or constitutional court (court of last resort). Grounds for appeal vary tremendously from one country to another. In Common Law systems, a verbatim record is made of the proceedings in the trial court, and the appeals court relies on the transcript of the proceedings to determine whether any error was made. Because of that, attorneys and judges are very mindful that their words are being recorded by the court stenographer, and this may contribute even more to the theatrical nature of the proceedings. The appeals court reviews only the legal aspects of the case, not the facts. If the appeals court finds that

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a procedural error was made by the court of original jurisdiction, it may send the case back to be retried. In criminal cases, only the defense has the right to appeal a verdict. In Civil Law systems, both the defense and the prosecution enjoy the right of appeal. The case file in an appeal is more likely to consist of judges’ summaries of evidence presented than of a verbatim transcript. The appeals court usually reviews both the law and the facts, meaning that witnesses may be summoned to testify again or new evidence may be sought. Some countries, such as Germany, make a distinction between civil and penal cases, and allow a review of both the law and the facts only in the former. The Japanese system allows the appeals court to examine witnesses only under certain exceptional circumstances, in both civil and penal cases (Supreme Court of Japan, 2016a). In France, the appeals court is known as the Cour de Cassation, and it is authorized only to interpret the law, not to decide cases. Thus, in contrast to the “judge-made law” of the Common Law tradition, decisions of the Court of Cassation either affirm the lower court’s ruling or quash it and remand the case for reconsideration, but are not binding on any other court in any other case (Cour de Cassation, 2016). Alternative programs In many countries, efforts are made to treat certain offenses (usually those involving drug abuse or sexual behavior, and perhaps domestic violence) through rehabilitation rather than punishment. This approach is often called “restorative justice” to emphasize its focus on “redressing the harm done to the victims, holding offenders accountable for their actions and, often also, engaging the community in the resolution of that conflict” (Dandurand and Griffiths, 2006, as cited in González et al., 2012, pp. 382–383). The offender may be ordered to spend a certain period of time in a treatment facility or to undergo counseling or therapy, after which charges may be dropped or amended. This process is known by a variety of terms, including diversion and deferred entry of judgment. The cases may be heard in special courts that deal exclusively with these offenses. The names of these alternative programs are often very challenging to interpret because they contain culturally-loaded terms and bureaucratic jargon (“Fresh Start,” “SB38 First-Offender Program,” “Drug Awareness,” “Parenting Classes,” etc.). Minors who are accused of crimes are also treated differently from adults in most countries. In order to avoid the stigma of being branded a criminal at a young age due to youthful indiscretions, juveniles are prosecuted in separate courts and subject to special programs for treatment or rehabilitation. Often, different terminology is used for proceedings in juvenile court. In the United States, for example, there is no plea, but the minor is asked to admit or deny the allegations in the petition, and the trial is known as an adjudication. Juveniles who commit particularly violent offenses or are found to be repeat offenders may be incarcerated, but always in facilities

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separate from adults. Recent legal reforms in some jurisdictions provide that older juveniles who commit particularly serious offenses may be tried as adults.

Civil procedure Civil litigation typically involves private disputes over issues such as medical malpractice, torts and damages, contract enforcement, employment relationships, debt collection, divorce, adoption, probate of wills, and certain aspects of public administration (taxation, immigration, social benefits, etc.). As with juvenile matters, different terminology may be used in civil cases. For example, in the United States, rather than complainant, the person who files a civil complaint is called a plaintiff or petitioner, and the party being sued is called the defendant or respondent. In the case of government administrative matters, the person who initiates the action may be known as a claimant or applicant. Most countries have a civil court structure that is parallel to the criminal court hierarchy. In some systems, civil and penal cases arising out of the same incident (such as a car accident) may be processed together by the same court. As with penal cases, lesser matters are heard in courts of limited jurisdiction in summary proceedings, and more serious matters (involving large amounts of money or drastic consequences for the defendant, such as loss of property) are heard in courts of general jurisdiction in more complicated and prolonged proceedings. It should be noted that no matter how serious the case, loss of liberty is never at stake; in other words, no defendant can be imprisoned as a result of a civil judgment against him. The procedure followed in civil cases is very similar to that of criminal cases: First a complaint is filed with the court, and the defendant is notified, usually by having a summons delivered or served in person, and is given a certain period to respond. The initial complaint and the response are known as the pleadings. The form of the pleadings must comply with strict rules regarding the statement of the demand for relief and the legal grounds on which the suit is based. Next comes the evidence-gathering stage. In many Civil Law countries, a judge or panel of judges receives evidence from the parties over a period of time, and may question witnesses personally or simply read their statements before issuing a ruling. In a hybrid system like Japan’s, this process may occur at a single oral proceeding conducted by a judge, with direct and crossexamination of witnesses. In Common Law countries, the attorneys for the parties gather evidence by submitting written questions to the parties (interrogatories) or taking sworn testimony outside the presence of the judge from either parties or witnesses (depositions) in a process called discovery. During this phase they try to settle the case without going to trial, and they may decide to submit the case to binding arbitration (in which they agree in advance to abide by the decision of a professional arbiter, often a retired

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judge). If they do go to trial, they can choose between a jury and a bench trial, and the procedure followed is the same as in a penal case. Japan has a similar method of avoiding trial, known as conciliation, with the unique feature of a Conciliation Committee composed of a professional judge and two or more lay commissioners (Supreme Court of Japan, 2016b). Alternative dispute resolution or mediation is an increasingly popular method of settling civil cases. Indeed, the European Mediation Directive (2008) provides for “compulsory” mediation (meaning that attendance is compulsory, not that settlement by mediation is mandatory). There is no jury in civil proceedings in countries in the Civil Law family, even those that do make use of the lay jury or lay judges in criminal proceedings. Consequently, there is no need to bring all the parties together at once for a formal trial; rather, civil litigation in these countries has been described as a “continuous process of meetings, hearings, and written communications during which evidence is introduced, testimony is taken, and motions are made and decided. A primary goal of the system is to facilitate settlements” (Glendon et al., 1999, p. 96). Since legal professionals rather than laypersons decide civil cases, they are given more latitude in their decision-making and do not have to observe strict rules of evidence. As in penal cases, the judge in civil proceedings plays a more active role in investigating the facts than in Common Law countries. The judge may obtain certain types of evidence, such as expert opinions, on his own motion, thus “reducing the disadvantage of the party with the less competent lawyer” (Glendon et al., 1999, p. 96). The attorneys, in contrast, are just as adversarial in Civil Law countries as their Common Law counterparts, in that each side attempts to persuade a neutral party, the judge, that they are in the right.

The interpreter’s role The nature of your work as an interpreter will depend a great deal on how evidence is gathered and presented in your country’s legal system. In courts where much of the evidence is submitted in writing and testimony is summarized rather than recorded verbatim, you will most likely be asked to provide a consecutive summary interpretation (modes of interpreting will be discussed further in Chapter 7). You may or may not be expected to translate documentary evidence for the defendant, depending on the laws of your country. Summarizing complex legal proceedings is a very difficult task fraught with potential for distortion, so it is all the more essential that you be familiar with the workings of the court system. Ideally, all summarizing should be done by judges or attorneys, with a complete interpretation of the summary to ensure that the defendant is fully apprised of what is happening in the case. Many courts will allow simultaneous interpretation at the request of one of the parties.

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If you work in a court where a verbatim record is made and witnesses testify in person, you may be expected to provide a simultaneous interpretation of the entire proceedings for the defendant. Witness testimony presented in a foreign language is generally interpreted in the consecutive mode for the record, in as close to a verbatim manner as the target language allows and retaining non-verbal elements of meaning such as pauses and hedges; summary interpreting should be avoided. In adversarial proceedings, the trial is a dramatic event that puts a lot of pressure on all of the “performers,” including the interpreter. Interpreting on the witness stand is particularly stressful, because to convey the testimony accurately so that it will have the same impact on the jury as non-interpreted testimony, you must take on the witness’s demeanor as if you were acting a part in a play. Each side wants the witness’s words to be interpreted in a way that favors their case, and they may object to the interpretation even when it is correct (either because they believe that what the witness said is prejudicial to their case and want to blame it on the interpreter, or because they happen to know the source language and disagree with the interpreter’s rendition). It is very difficult to maintain the necessary impartiality when you are being pulled in both directions by the attorneys. Furthermore, the melodramatic speeches given by counsel, the arcane legal jargon of motions and objections, the rapid-fire exchanges in cross-examination, and the technical testimony of expert witnesses all pose tremendous challenges for interpretation. It is also hard to maintain neutrality as an interpreter when cultural misunderstandings arise. It may be tempting to provide information about a certain practice, concept, or expression when you are familiar with the subject and you want to help people communicate. There is a danger, though, that you may be perceived as favoring one side or the other by speaking for them or explaining their attitudes, and in any case, you would be acting as a witness rather than an interpreter. If the court needs information about a certain culture or ethnic group, it might be better served by obtaining that information from someone who is not otherwise involved in the case, such as a college professor or a community leader. Guidelines for providing explanations or clarifications when interpreting are presented in the next chapter.

Conclusion In this chapter we have reviewed the basic steps in a criminal case, from the time a crime is allegedly committed through the investigation and arrest, pretrial proceedings, the trial itself, the verdict and sentencing, and the appeals process. The variations that occur in the two major legal traditions of the world, Common Law and Civil Law, have been presented. Because court interpreters appear far less often in civil matters, we have touched only briefly on civil procedure and significant differences between civil and

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criminal cases. And finally, the role of the interpreter in these cases has been analyzed.

Additional study activities 1

2 3 4 5 6 7

What are the rules of criminal and civil procedure in your country? How do they compare with those of the country or countries where your working language is spoken? Give examples of some legal terms that are particularly difficult to interpret in your working languages. If possible, observe a court proceeding and keep a journal of your experience. Invite a judge or lawyer to speak to your class about a specific area of the law. Take a field trip to a crime lab, a juvenile detention facility, or a police station. How are juvenile matters handled in your country? How does the terminology differ from that used in the adult courts? Here are three figures showing the positions of the participants in a U.S. courtroom (Figure 4.1), a South African courtroom (Figure 4.2), and a Japanese courtroom (Figure 4.3). How does this layout compare with that of a courtroom in your country?

Judge

Court Clerk

Witness

Court Reporter Jury

Bailiff

Defendant and Defense Counsel

Prosecution

Public Gallery

Figure 4.1. U.S. courtroom

Magistrate

Magistrate

Court Orderlies

Magistrate

Magistrate

Defense

Defendant

Railings

e strat e Magi istrat g Ma

Railings

Railings

Public

Public

Public

Public

Public

Public

Figure 4.2. South African courtroom

Criminal and civil procedure

Presiding Judge

Associate Judge

Associate

Court Clerk

Associate Judge

Court Stenographer Associate

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Associate Associate

Guard Railings

Defendant

Railings

Railings

Public

Public

Public

Public

Public

Public

Figure 4.3. Japanese courtroom

Suggestions for further reading De Jongh, E. (2012). From the classroom to the courtroom: A guide to interpreting in the U.S. justice system. American Translators Association Scholarly Monograph Series XVII. Amsterdam and New York: John Benjamins. González, R., Vásquez, V., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. Heller, K. and Dubber, M. (Eds.) (2011). The handbook of comparative criminal law. Stanford, California: Stanford Law Books.

References Ashworth, A. (2011). United Kingdom. In K. Heller and M. Dubber (Eds.), The handbook of comparative criminal law (pp. 531–562). Stanford, California: Stanford Law Books. Cour de Cassation. (2016). About the court. Retrieved January 17, 2016 from https:// www.courdecassation.fr/about_the_court_9256.html. Elliott, C. (2011). France. In K. Heller and M. Dubber (Eds.), The handbook of comparative criminal law (pp. 209–251). Stanford, California: Stanford Law Books.

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European Mediation Directive 2008/52/EC. (2008). Retrieved January 17, 2016 from http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:136:0003:0008: EN:PDF. Glendon, M., Gordon, M., and Carozza, P. (1999). Comparative legal traditions in a nutshell. St. Paul, MN: West Group. González, R., Vásquez, V., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. Hatchard, J., Huber, B., and Vogler, R. (Eds.) (1996). Comparative criminal procedure. London: British Institute of International and Comparative Law. Heller, K. and Dubber, M. (Eds.) (2011). The handbook of comparative criminal law. Stanford, California: Stanford Law Books. Huber, B. (1996). Criminal procedure in Germany. In J. Hatchard, B. Huber, and R. Vogler (Eds.), Comparative criminal procedure (pp. 96–175). London: British Institute of International and Comparative Law. Legal Information Institute. (2016). Criminal law. Retrieved January 17, 2016 from https://www.law.cornell.edu/wex/criminal_law. Merryman, J. and Clark, D. (1978). Comparative law: Western European and Latin American legal systems, cases and materials. Indianapolis, New York, and Charlottesville, VA: The Bobbs-Merrill Company, Inc., Publishers. Ministerio de Justicia. (2016). Reforma procesal penal: Rol de los jueces. Retrieved January 17, 2016 from http://rpp.minjusticia.gob.cl/rol_de_los_jueces.html. Supreme Court of Japan. (2016a). Outline of criminal procedure in Japan. Retrieved January 17, 2016 from http://www.courts.go.jp/english/judicial_sys/criminal_con tents/criminal_text/index.html#28. Supreme Court of Japan. (2016b). Outline of civil procedure in Japan. Retrieved January 17, 2016 from http://www.courts.go.jp/english/judicial_sys/civil-contents/civiltext/index. html#06_e. Vogler, R. (1996). Criminal procedure in France. In J. Hatchard, B. Huber, and R. Vogler (Eds.), Comparative criminal procedure (pp. 14–95). London: British Institute of International and Comparative Law. Weigend, T. (2011). Germany. In K. Heller and M. Dubber (Eds.), The handbook of comparative criminal law (pp. 252–287). Stanford, California: Stanford Law Books.

5

Interpreting for law enforcement

Court interpreters work in many venues other than the courtroom, among them police stations and other law enforcement settings, immigration agencies, jails, and prisons. Indeed, when added together, these settings account for more interpreted interactions than those which take place in a courthouse. In this chapter, we will discuss these domains one by one, examining the issues confronted by interpreters in each. We will then address another increasingly important element in the investigation of crimes: the transcription and translation of recorded communications made during police interviews and undercover investigations. We will also provide some recommendations for best practice in all of these realms.

Introduction Foreign nationals tend to be over-represented among arrestees and prison inmates throughout the world. In Europe, for example, van Kalmthout et al. (2007, p. 10) report that foreign prisoners are “highly overrepresented in pretrial detention” and that the numbers of foreign prisoners in European detention facilities have generally increased over the past 20 years. This may be because of demographic, social, and psychosocial factors that may be prevalent in some immigrant populations, or due to the adoption of increasingly harsh laws and sentences (Martínez-Gómez, 2014). Whatever the reason, a growing number of researchers have begun to study the particular issues facing migrants and the law enforcement officials they encounter in the justice systems of host countries. According to Tipton and Furmanek (2016, p. 36), “Given the pivotal role of language in law enforcement and protection, inconsistencies at the level of the regulation and organization of interpreting provision are a source of concern.” Foreign nationals are frequently required to appear in proceedings related to their immigration status, especially when they apply for asylum. Not only are social scientists interested in elucidating the communication factors inherent in interpretermediated dialogues in the law enforcement context, but social activists and policy-makers are also concerned about protecting the rights of vulnerable populations.

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The evidence gathered during the pretrial phase clearly has a major impact on outcomes in criminal cases, so ensuring accuracy in interpreting at this stage is of paramount importance for guaranteeing due process. Yet there is a risk that language and cultural barriers can cause distortions and rights violations when unqualified linguistic mediators are used (González et al., 2012; Laster and Taylor, 1994; Mulayim et al., 2015). There is a domino effect when tainted interrogation evidence is used in a criminal case. In the absence of appropriate linguistic accommodations, an LEP [limited English proficient] suspect’s statement – a product of garbled communications and misinterpretations – becomes the foundation of the alleged “facts” to be introduced at trial. (González et al., 2012, p. 446) Imprisonment is also an essential part of the criminal process, though the standards that govern interpreting in legal settings rarely extend to police investigations or incarceration facilities. It is worth noting that the way prisons handle language issues can be a significant factor in the rehabilitative objectives that are purportedly being pursued there (Martínez-Gómez, 2014). This chapter will also cover immigration proceedings, using a very broad definition of law enforcement to include customs and border protection. Specifically, we will discuss the hearings held to determine whether someone has the right to enter the country, whether as a refugee, an asylee, or a resident immigrant. The particular circumstances that arise when asylum seekers are required to describe in detail the violence and persecution to which they have been subjected in their home country make interpreting in these settings especially challenging.

Police interviews Interpreting for the police does not always take place in the police station itself; it may also be done during raids on homes and businesses, on public roadways, and at crime scenes when witnesses are interviewed. Interpreters may even be exposed to physical danger in some of these encounters, which may lead to a preference for remote interpreting when it is appropriate (Tipton and Furmanek, 2016). International instruments such as the United Nations International Covenant on Civil and Political Rights of 1966 establish the principle that all persons are equal before the law and have the right to be informed of any criminal charges against them in a language they understand. Moreover, the 1963 Vienna Convention on Consular Relations states that foreign nationals are entitled to have access to their nation’s consulate so that they can obtain the assistance of their government. Though there is no guarantee that their language rights will be protected, having a foreign consulate involved puts law enforcement agents on notice that they must adhere to certain international norms in their

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treatment of persons in their custody. Many countries have gone beyond these obligations to explicitly provide for advisement of procedural rights in the suspect’s own language (Colin and Morris, 1996; González et al., 2012; Laster and Taylor, 1994; Torstensson and Sullivan, 2011). Unfortunately, actual police practices do not necessarily adhere to the spirit of these requirements even if they do obey the letter. The Communication of Rights Group (2015) points out that many arrestees are unable to understand the advisement of rights even when they share the same native language with the police, and it has developed a set of guidelines to help law enforcement agencies communicate clearly despite language and education barriers. The group recommends that these agencies develop standardized statements in other languages in consultation with professional interpreters and translators with expertise in legal interpreting and the varieties of the languages involved. They further advise that suspects should be informed of their right to an interpreter at the outset, and that interviews be video recorded, among other recommendations (Communication of Rights Group, 2015, pp. 3–5). Interpreted interviews It is important for interpreters to be aware of the significance of investigative interviews in the overall development of criminal cases, as well as the strategies and approaches that are commonly used. In addition to the risks involved in using inappropriate tactics, including false confessions and other methods that lead to miscarriages of justice, Mulayim et al. (2015) emphasize the undermining of credibility and the waste of resources that result when interviews are not conducted properly. Although police training in Western countries with large immigrant populations increasingly covers cultural and linguistic awareness, rarely is there specific training on working with interpreters. Because trained police interviewers are very careful in the wording of their questions, it is important for interpreters to conform to their lexical choices as closely as possible in the target language. For example, these authors cite guidelines recommending the use of “How come …” questions instead of “Why …” with vulnerable witnesses, but in a study of interpreted interviews in 11 different languages they found that this distinction was preserved in only 45 percent of the questions posed, even though all 11 languages were capable of producing linguistic equivalents (Mulayim et al., 2015, p. 25). The language used by the police in interviews is often very formulaic and is required by law and police regulations, even though it may be inaccessible to many interviewees. The “linguistic tricks” used by lawyers in courtroom crossexaminations are similar to those employed by the police, but in court there is a judge to enforce procedural rules, whereas in the police station there is no such oversight (Laster, 1990, as cited in Mulayim et al., 2015, pp. 29–30). The power asymmetry of police interviews is emphasized by many researchers, (Berk-Seligson, 2009; González et al., 2012; Laster and Taylor, 1994; Mulayim et al., 2015). González et al. (2012) contend that immigrants from

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countries where police brutality is common are even more likely to be intimidated than other individuals who are taken into police custody. Police interviews are stressful for all parties, the questioned and the questioners alike. When interpreters are added to the mix, they can either exacerbate the stress and power disparity or level the playing field. Interpreters, therefore, should be acutely aware of the important role they play in the police interview setting, where their act serves to bring the power dynamics to a level where the interviewee who has a language barrier is at no more of a disadvantage than a native speaker in such a setting. (Mulayim et al., 2015, p. 30) An important aspect of police investigating tactics is the creation of “two layers of reality”: the primary reality of the police interview room and the secondary reality of the incident in question. Trained interviewers deliberately move back and forth between the two realities, and interpreters must understand that sequence in order to use the right verb tenses and time references in the interpreted questions and answers. They must also be alert to the subtle differences in word choice intended to evoke negative or positive responses (as in the different connotations of “loved one,” “baby boy,” “the deceased” and “the victim”) and reproduce that nuance as closely as possible (Mulayim et al., 2015). Interpreters should also be aware that perhaps the most salient aspect of police interviews is that the dialogue is knowingly produced for a third party, the court system (i.e. judges, attorneys, and, where applicable, juries). This third party is likely to scrutinize the statements made and come to different conclusions about what is said, meant, and intended by the parties. The conversations that take place in the context of police investigations follow significantly different patterns from ordinary social conversations, in that the order and length of turns is dictated by the dominant interlocutor, the police officer, who also controls the allocation of turns. Again, it is essential that interpreters understand this communication dynamic so that they can coordinate their own turn-taking needs with the demands of the interaction (Mulayim et al., 2015). In addition, the triadic nature of the encounter and the use of two-way consecutive interpreting contribute to interpreter visibility, which alters the dynamic considerably (Braun, 2014). From the interpreter’s point of view, the pressure to violate standard ethical principles such as impartiality can be much stronger in law enforcement environments than in other legal settings. Because the police are usually not trained to work with interpreters and have little experience of interacting with professional interpreters, they may misunderstand the role of the interpreter and expect third-person summary interpreting, explanations, and other inappropriate behaviors. In addition, detainees may be using a second language themselves (for example, someone from the Ivory Coast who is assigned a French interpreter as none is available in his native Dioula), further impeding communication. The mixture of formal legal language, police jargon, and street slang also

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poses challenges for interpreters, and the power disparities mentioned above further complicate interpreted police interviews (Ortiz Soriano, 2015). Interpreter safety is a significant issue in these settings. Corsellis (2008) reports that guidelines adopted in England and Wales for interpreted investigations and proceedings provide that officers should carry out a risk assessment to make sure the location of the interview is safe for the interpreter (e.g., a police station rather than a private residence). They should avoid leaving the interpreter alone in a room or cell with the interviewee, and also make sure the interpreter does not leave the police station at the same time or through the same exit as the interviewee. Best practices for police questioning Mulayim et al. (2015) discuss models of police questioning practices that prevail in different countries, contrasting the PEACE model developed in the United Kingdom in the 1990s and adopted by several other countries since then, and the Reid Technique that is primarily used in the United States and Canada. The PEACE model derives its name from the mnemonic Planning and Preparation, Engage and Explain, Account, Closure and Evaluation, and is intended to discover the truth without intimidating or prejudicing suspects. The Reid Technique dates back to the 1940s and 1950s, and the idea is to persuade a suspect to confess using first an interview process, which is “nonaccusatory and conducted with a view to gathering information,” and then, assuming there is a reasonable foundation for criminality, an interrogation, which is accusatory. The authors note that the Reid Technique has been characterized as oppressive and confrontational, possibly leading to false confessions. Indeed, González et al. (2012) report numerous instances of coercive interrogation tactics and false confessions elicited throughout the United States, and they make a number of best practice recommendations to prevent such miscarriages of justice. They urge judges and attorneys to be skeptical of evidence produced from interrogations using police interpreters whose linguistic and interpreting proficiency has not been verified. These authors also state that close-ended question types should be replaced with open-ended questions that invoke narrative responses. Tipton and Furmanek (2016) provide an excerpt from a police procedural manual that suggests an introductory statement by the interviewing officer to explain the role of the interpreter, even noting that if the interpreter violates the rules, disciplinary action will be taken. They also report research by Krouglov (1999, as cited in Tipton and Furmanek, 2016, p. 48) that prompted him to draw up some suggestions for proper interpreter behavior: The analysis leads Krouglov to make a series of recommendations for interpreters, namely that during interaction an interpreter’s output should take account of: (1) the relative social status of the interlocutors; (2) the tenor of the discourse, that is, the nature of participant relations; and

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(3) cultural factors such as cultural inheritance and life experience. Krouglov also recommends the interpreter to explain linguistic issues as they arise to interviewing officers, thereby emphasizing the importance of transparency in the interpreter’s performance. In the fast-moving context of the police interview, especially in cases where a witness might say something that changes her/his status into a suspect, the interpreter’s intervention and contribution in the ways suggested above are considered warranted. Training Implementing the above best practices requires training, not only for interpreters who work in law enforcement but also for law enforcement professionals themselves. In a position paper, the National Association of Judiciary Interpreters and Translators (NAJIT) (2006) advocates including instruction on working with interpreters at police academies and in in-service training. Pérez and Wilson (2007) call for service providers such as police officers to be involved in the curriculum of interpreter training programs. The professionalization of interpreting is not solely a question of training more professional interpreters to work competently in police settings, it is also about training police officers to be able to work “professionally” through and with interpreters (i.e. in a way which allows them to apply, perhaps adapt, their professional skills and training). Fundamentally, it is about enabling police officers and interpreters to work as a professional team, in complementary partnership, so that working through an interpreter has the minimum disruptive or negative impact on the interview thereby ensuring fairness to both the accused and to society at large. (Pérez and Wilson, 2007, p. 93)

Interpreting in jails and prisons When defendants are being held in pretrial detention, their defense attorneys and investigators may need to visit them in jail to prepare their defense at trial. When defendants have limited proficiency in the language of the courts, defense counsel or investigators must be accompanied by interpreters. Attorneys may make use of their own bilingual staff or investigators to interpret (as is frequently the case in parts of the United States where Spanish is the predominant non-English language and bilinguals are not scarce), but more often than not they must rely on professional interpreters. Interpreting in a locked facility is obviously different from that performed in other legal settings, given the security requirements of the jail and the potential for aggressive behavior by inmates. However, the quality of the interpreting should be exactly the same as if the attorney–client interview were taking place in a law office, and the ethical requirements are no different (see Chapter 6 on ethics).

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As noted in the introduction to this chapter, just as important as the quality of interpreting provided in the early stages of a criminal case is that of the interpreting in the final phase, the period of incarceration when someone has been convicted of a crime. Van Kalmthout et al. (2007, p. 17) describe the situation as follows: The most common and significant problem faced by foreign prisoners is the lack of knowledge of the national language. As a result verbal and written communication is severely hampered and that causes feelings of social isolation, uncertainty and helplessness. The less they are in number, the more isolated they become. Daily interactions between foreign prisoners and staff are crucial and it often depends on the goodwill of prison staff and fellow-prisoners and the availability of an interpreter. Linguistic barriers are often the main source of other problems that foreign prisoners are facing in penitentiary institutions. Communication in prison settings runs the gamut from conversations between inmates, to interactions between inmates and prison officers, to medical consultations or treatment programs, to formal hearings conducted to deal with disciplinary issues or early release. In addition, written materials such as prison rules need to be translated. As with police settings, there are several international standards that govern the treatment of individuals incarcerated in foreign countries, most notably the UN Standard Minimum Rules for the Treatment of Prisoners (sect. 30.3 and 51.2) and the UN Recommendations on the Treatment of Foreign Prisoners (rec. 4 and 7) (cited in Martínez-Gómez, 2014, p. 241). But these are nonbinding standards, and like so many other areas where interpreters work, the practical application of the rules falls short of the drafters’ original intent. With a few exceptions, most countries require only that general information be made available in foreign languages, but unsurprisingly, monitoring of written and spoken communications in foreign languages for security purposes is a frequent provision. Who interprets? Colin and Morris (1996) mention that despite increased efforts to attend to the needs of foreign nationals in British prisons, “the provision of interpreters appears to have always been a low priority in the prison service” (p. 132). While some improvements have been made since they wrote their book, not only in England and Wales, but also in Denmark, the Netherlands, Canada, and much of Australia and the United States, laws providing for the communication rights of limited language proficient prisoners are worded rather vaguely. Rarely is explicit reference to interpreters made, and there is usually no clear definition of who is qualified to interpret. Some regulations even specifically mention family or friends, volunteers, and prison employees

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(Martínez-Gómez, 2014). Often it is assumed that inmates will simply pick up the language by osmosis, using what one informant in Colin and Morris (1996) calls “inmate English.” Serious misunderstandings can result from this haphazard approach, and all too often no one is aware of the problem. One prison officer reports a situation with a relatively positive outcome: There were two prisoners on hunger strike and the situation was becoming very serious. Eventually it was decided that interpreters had to be brought in. It turned out that one of the men was not eating because he thought he would have to pay for his meals and he had no money; the other was just miserable because there was nobody to talk to. (Colin and Morris, 1996, p. 132) In her survey of the world’s prison systems in terms of providing for language services, Martínez-Gómez (2014) does report two exceptional cases (in Australia and the United Kingdom) where regulations contain guidelines on the use of interpreters, including emphasis on impartiality and accuracy. One of them goes so far as to caution that prison officials should take bilingual inmates’ own needs or concerns into account when asking them to interpret for fellow inmates. Sometimes prison staff who speak other languages are identified in a directory and even given extra pay for interpreting, but they do not receive special training. Employees who also interpret as part of their jobs are known as dual role interpreters, and family members or bystanders who are spontaneously asked to “help” are known as ad hoc interpreters. Hiring professional interpreters is at best considered an alternative for exceptional cases. In light of security concerns and time considerations, remote interpreting is a frequent expedient (Fowler, 2013; also see Chapter 8 on remote interpreting). Inmates as interpreters A world survey of interpreting in prison systems reveals that “the participation of ad hoc interpreters – mainly prisoners – in communicative events between prison staff and foreign language-speaking inmates seems to be the most common way to bridge the language gap” (Martínez-Gómez, 2014, p. 246), despite the criticism that inmate-interpreters are put in a position of power, that they are not necessarily qualified to interpret, and that breaches of confidentiality are a major risk. Nevertheless, in her research in Spanish prisons, Martínez-Gómez found that the quality of the interpreting provided by inmates was “acceptable,” both by external standards and from the point of view of user satisfaction, despite expectations to the contrary (2011, p. 486). Whether the caliber of inmates in these prisons is exceptionally high or these findings can be replicated in other countries remains to be seen. It stands to reason, though, that rather than relying on the good fortune of stumbling upon proficient natural interpreters in the prison population, all parties would be better served by professionalizing the interpreting services offered in correctional

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facilities. Indeed, Martínez-Gómez herself concludes: “The leading countries in prison language mediation (Australia, Denmark, England and Wales, the Netherlands and Sweden) have opted for promoting the use of professionaloriented measures” [emphasis in original] (2014, p. 253). Guidelines for interpreters As a professional interpreter who is called upon to interpret in a jail or prison, unless you are appearing remotely by telephone or video, there are some special considerations you should be aware of. 1

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Because of concerns about weapons and contraband, detention facilities often have very specific rules about who can enter and what they can bring in. Find out in advance what identification you will need to show, whether you will need to leave your cell phone or other communication devices outside the facility or in a locker on the premises, and whether sharp instruments such as pens and pencils are allowed. There may also be restrictions on what you can wear: if the color of prisoner uniforms is blue, you may be told not to wear that shade of blue, for example; or there may be a rule against wearing underwired bras. Be prepared to go through a metal detector and have your belongings searched. Obey instructions at all times to avoid accidentally triggering an alarm or causing a disturbance. Stay with the attorney or investigator at all times. Never allow them to leave you alone in a room with an inmate. Because of the attorney–client privilege, prison authorities must keep their distance (though there may be visual surveillance), which means that assistance may not come immediately in case of an emergency.

These instructions sound dire, and interpreters are rarely in physical danger in jails or prisons. Nonetheless, due caution is warranted.

Interpreting in immigration proceedings The right of sovereign nations to protect their borders and define who is allowed to enter, visit, or reside in their territory has long been recognized in international law, though there is no comprehensive legal instrument governing migration. Ever since the 1951 United Nations Geneva Convention relating to the Status of Refugees was signed, the rights and protections to which refugees are entitled have been clearly defined. It should be noted that a refugee is someone who is forced to flee his or her country due to the threat of persecution or the lack of protection in that country, whereas a migrant is anyone who moves from one country to another for reasons of employment, family reunification, or education (United Nations High Commissioner for Refugees, 2011).

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Countries that receive migrants and refugees regulate the entry and acceptance of such foreign nationals, and when they are apprehended at a point of entry such as a border crossing or an airport, they often have few rights or protections. Little information is available about the quality of the interpreting (if any) that is provided in such encounters. Subsequently, special hearings are held if an individual has requested asylum or a resident foreigner is to be deported. In the United States, for example, these hearings are conducted by the Executive Office for Immigration Review (EOIR), and the issues to be examined include removal, reviews to establish credible fear or reasonable fear, asylum, and rescission of immigration status (González et al., 2012). Under most circumstances, interpreters are provided for these proceedings, though there is little regulation governing the quality of the interpreting services to be provided (Pöllabauer, 2015). In addition, the procedural rights enjoyed by nationals are not always accorded to foreigners in a given country. As a result, attorneys do not always appear and the hearings tend to be less formal than criminal court proceedings. According to Pöllabauer (2015), the usual interaction format in asylum hearings involves just the immigration or asylum official, the applicant, and the interpreter. Lawyers and other representatives may be present in some cases. The interpreter is critical, as she may be the only person who understands everything that is said and knows what is going on. Because refugees often flee their countries without documentation, in-person interviews may be the only way for the authorities to establish the facts and assess the applicant’s credibility. Unlike criminal defendants, applicants for asylum usually have the burden of proof (see Chapter 4). The interpreting is most often consecutive, though whispered simultaneous may be used (see Chapter 7). As with other law enforcement settings, interpreters are frequently untrained and unfamiliar with ethical principles, and because asylum applicants may be even more vulnerable than limited language proficient (LLP) litigants in regular court proceedings, the potential for distortions and interference is great. The risks of miscommunication are even greater when children are involved (Keselman et al., 2010). Regardless of whether the applicants are children or adults, the sometimes harrowing stories that are told make the interpreting especially difficult in these life-changing hearings. Other problems that can arise in these hearings are due to the lack of training for immigration personnel on working with interpreters. It is not uncommon for interpreters of the “wrong” ethnic group to be assigned (Pöllabauer, 2015, p. 210) – as in the case of Bosnian, Croatian and Serbian speakers for example – which undermines trust and reliability. There may be misapprehensions about the role of the interpreter, including the overt expectation that the interpreter will be a “cultural mediator” who will provide “cultural orientation” in addition to interpretation (Merlini, 2009, p. 58). Sweden has an exemplary training program for interpreters in asylum proceedings, and a training program in Egypt has yielded promising results (Lee and Choi, 2015). In another positive development, Lee and Choi (2015) report that the new Refugee Act promulgated in South Korea in 2013

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explicitly calls for trained professional interpreters, and they recommend a model for the training of interpreters in this setting based on their own experience. In addition to advocating more training of interpreters in asylum hearings, Pöllabauer (2015) also recommends that providers receive instruction on working effectively with interpreters.

Transcription and translation of recorded communications Transcription and translation have many applications, including academic research, and media and entertainment, but in the context of court interpreting the most important application is criminal investigations. Valero-Garcés (2014) calls it forensic transcription and translation (FTT), and defines it as follows: FTT is the process of transcribing and translating audio/video recordings of speech from foreign language speaking individuals for use as evidentiary material in the legal process. It is a two-part process consisting of: (1) a verbatim orthographic transcript of an evidentiary recording, and (2) the transcript’s conceptually verbatim translation into another language. (p. 163) FTT has become an increasingly common occurrence because of technological advances that make it possible to eavesdrop on anyone, anywhere, at any time (though most countries have legal safeguards against violations of personal privacy); and because in the globalized, post-9/11 world, authorities are resorting more and more to such surveillance to combat international criminal activity and terrorism. Not all of the recorded interactions that are transcribed and translated are covert, of course, as they also include openly recorded interviews by law enforcement officers and investigators for insurance companies or other entities, as well as video surveillance in detention facilities that all parties are aware of. González et al. (2012) call FTT “one of the most demanding and rapidly growing areas of legal interpretation” (p. 965) and have devoted an entire chapter to the subject. They point out that it is a hybrid activity, combining interpreting, translating and task-specific skills, and emphasize the need for specialized training. Among the recordings that might be transcribed and translated for forensic purposes are custodial and field interrogations, telephone conversations, wiretaps, and undercover surveillance recordings. The recordings can take place in police stations, police cars, private residences, and public places such as sidewalks, bars, and airports. Sometimes FTT is done just for informational purposes, but proper procedures are absolutely essential when the resulting product is to be used as evidence in a criminal case. Important cases can be damaged irreparably by deficient, incompetent, or biased FTT services (Angelelli, 2015; González et al., 2012; Taibi and Martin, 2012; ValeroGarcés and Abkari, 2010). What makes FTT particularly difficult is that oral language is reduced to writing, where important elements of meaning such as tone of voice and

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facial expressions cannot be reproduced. Valero-Garcés (2014) provides one account of the challenges: When a Colombian says ‘¿qué más?’ is it ‘what else?’ or ‘how you doin’?’ When a Dominican says ‘dímelo, tigraso,’ is he actually talking to someone called ‘tigraso’ [big tiger], or is he saying something more akin to ‘talk to me, big guy’? (Palma, 2004, as cited in Valero-Garcés, 2014, p. 163) When such conversations are recorded on video, some of those deficiencies are absent, but in court cases the triers of fact may not necessarily see anything other than the transcript and translation on paper. Other difficulties include regional variants or dialects, coded language, multiple speakers and overlapping voices, and poor quality recordings. Sometimes it is hard to distinguish different voices in multi-party conversations. When properly done, FTT is very timeconsuming and exacting; the National Association of Judiciary Interpreters and Translators (2009, p. 2) cites an industry standard of up to one hour of transcribing work for every minute of conversation in a forensic recording, and that does not include the subsequent translation. In the interest of saving time and money, courts have been known to ask interpreters to provide simultaneous interpretation of sound files such as emergency calls and voicemails on mobile phones without going to the bother of preparing an FTT. NAJIT (2006, p. 1) recommends against this practice, arguing that The quality of in-court interpretation of a sound file will almost always fall short of the evidentiary standards that must be met, due to the lack of time, technology, and resources required by the practitioner to perform the task correctly. It further asserts that given all that is at stake in a criminal matter, there is no justification for cutting corners. A similar request that may be made of a court interpreter is to sight translate text messages and posts on social media. De la Cruz (2014) draws attention to the perils of attempting this task, pointing out that “even a short series of messages interspersed with sarcasm, insults, disguised threats, and the lot, often reach far beyond our ability to meet the perceived expectation to quickly begin sight translating” (n.p.). She goes on to raise a host of questions about the practice that are well worth pondering: If we are asked to just sight translate just one message out of many in a thread, is there a nice, succinct way to explain our need for more context? How should we stop between messages to note the change in speaker? Is it considered proper to hold the [mobile] phone ourselves? How to best call attention to the informal nature of abbreviations or common misspellings, if at all? Are there suggestions we could make to a judicial officer about

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Best practices Guidelines for proper FTT can be found in a number of sources, including the NAJIT website and most particularly González et al. (2012). 1

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Before accepting an assignment, you should have a clear understanding of what is expected: whether all or only part of the recordings are to be transcribed and translated, and the quality of the recordings. NAJIT (2009) advises that you listen to or view the recordings to ascertain the complexity of the task before providing an estimate for the client. Clients, underestimating the difficulty of the task, are often surprised at how expensive such a project can be, so it is best to get an agreement in writing. If the client wants only a summary of the recording rather than a verbatim transcript, the written agreement should state that the product is a summary and is not intended to be used as evidence in court. Use high quality transcribing equipment and software that allow for optimum audio conditions and efficient playback, given that you will likely have to listen to some passages several times to understand them (González et al., 2012, p. 1006). Technology changes rapidly, so you should check with interpreters’ associations to make sure you buy or rent state-of-the-art equipment. The final FTT product should have at least a three-column format that includes speaker identities (names, if known, or designations such as “male voice 1”), the complete transcription of the source message, and the translation. Although some clients may only want the translation without the source text, that is not advisable because the defense has a right to confront all the evidence and challenge any doubtful translations (NAJIT, 2009). González et al. (2012, pp. 1007–1008) call for a four-column format to include line numbers for easy reference; and in the case of reviews of previously performed transcription/translations, a six-column format with space for the reviewer’s corrections to the transcription and the translation, respectively. Transcribe all audible content, using labels such as “unintelligible” to account for utterances you cannot make out. The best approach is to be extremely conservative: do not guess at partially audible statements, or attempt to correct non-grammatical, non-standard language or nonsensical utterances. If a phrase is ambiguous, say so in a translator’s note and provide alternative translations. Include non-verbal content such as pauses, word fragments and background noises. González et al. (2012, pp. 1039–1041) recommend creating a legend to accompany the FTT to aid the reader in constructing meaning when there are “paralinguistic or sociolinguistic elements that may not be explicitly stated, but are present

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and do carry meaning.” The legend should contain abbreviations for five different types of information: speaker errors, verbal and non-verbal language behavior, discourse features, environmental and acoustic noises, and editorial notes by the transcriber/translator. They provide a sample legend with suggested abbreviations and symbols for typical features such as sighs, laughing, pauses, and soft or loud speech. If you have doubts or questions about part of a recording you are transcribing or translating, exercise extreme caution when consulting others. The confidentiality provisions that apply to all interpreting activities are applicable here as well, and may be especially important in the case of undercover investigations. Review the completed FTT one last time for quality assurance before submitting the final product to the client. If the FTT is to be used as evidence in court, you should attach a signed statement listing your qualifications and certifying that the FTT is faithful and accurate to the best of your ability, to the extent allowed by the quality of the recording. You may be called to testify as an expert witness about the preparation of the FTT, in which case you should be prepared for cross-examination and challenges to the accuracy of the FTT.

FTT is not something that every interpreter is qualified for or interested in doing, and it should not be taken lightly. On the other hand, some court interpreters in the United States develop an affinity for it and even specialize in providing this service. Palma (2004, as cited in Valero-Garcés, 2014, p. 163) says it can be “both frightening and exhilarating.” Whether or not you will agree with that assessment, you should be aware of the complexities and challenges involved.

Conclusion In this chapter we have reviewed a variety of issues related to interpreting for law enforcement agencies. First we examined police investigations and the special challenges of interpreting in that environment; then we moved on to jails and prisons, which pose their own difficulties, and discussed the use of ad hoc interpreters. And finally, we covered forensic transcription and translation in the context of criminal investigations. While you may never be asked to work in any of these situations in your career as a professional court interpreter, it is best to be prepared.

Additional study activities 1

What are the predominant linguistic minorities (immigrants, refugees or indigenous groups) in your country? Are they disproportionately represented in the criminal justice system? If so, explain why that may be.

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2

What legal provisions are in place in your country to regulate the treatment of persons who do not speak the official language when they are arrested, questioned, or incarcerated? Do you think adequate protections are in place? Can you envision working as an interpreter in a police station or a prison? How would you prepare for such work? What do you think you would like or dislike about it? Ortiz Soriano (2015), who is a conference interpreter, provides an interesting personal story about interpreting in a police station and the different demands she encountered. Her candid description of some of the deviations from normal interpreter behavior that she noted in her own interpreting offers some food for thought. Read her paper and discuss the issues she raises. Discuss the challenges of forensic transcription and translation. Would you be willing to undertake these challenges? Why or why not?

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Suggestions for further reading González, R., Vásquez, V., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. Mulayim, S., Lai, M., and Norma, C. (2015). Police investigative interviews and interpreting. Boca Raton, FL: CRC Press. Pérez, I. and Wilson, C. (2011). The interlinked approach to training for interpreter mediated police settings. In C. Kainz, E. Pruncˇ , and R. Schögler (Eds.), Modelling the field of community interpreting: Questions of methodology in research and training (pp. 242–262). Vienna, Berlin: LIT Verlag. Pöllabauer, S. (2015). Interpreting in asylum proceedings. In H. Mikkelson and R. Jourdenais (Eds.), The Routledge handbook of interpreting (pp. 202–216). London and New York: Routledge. Van Kalmthout, A., Hofstee-van der Meulen, F., and Dünkel, F. (Eds.) (2007). Foreigners in European prisons. Nijmegen, the Netherlands: Wolf Legal Publishers.

References Angelelli, C. (2015). Justice for all? Issues faced by linguistic minorities and border patrol agents during interpreted arraignment interviews. In M. Blasco Mayor and M. delPozo Triviño (Eds.), Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 181–205. Bancroft, M., Garcia Bayaert, S., Allen, K., Carriero-Contreras, G., and SocarrasEstrada, D. (2015). The community interpreter: An international textbook. Columbia, MD: Culture & Language Press. Berk-Seligson, S. (2009). Coerced confessions. Berlin: Mouton de Gruyter. Braun, S. (2014). Comparing traditional and remote interpreting in police settings: Quality and impact factors. In M. Viezzi and C. Falbo (Eds.), Traduzione e interpretazione per la società e le istituzioni (pp. 161–176). Trieste: Edizioni Università di Trieste.

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Colin, J. and Morris, R. (1996). Interpreters and the legal process. Winchester: Waterside Press. Communication of Rights Group. (2015). Guidelines for communicating rights to nonnative speakers of English in Australia, England and Wales, and the USA. Retrieved May 5, 2016 from http://www.aaal.org/news/266282/Guidelines-for-Communicatin g-Rights-to-Non-native-Speakers-of-English.htm. Corsellis, A. (2008). Public service interpreting: The first steps. Houndmills, UK: Palgrave Macmillan. De la Cruz, J. (2014, August 1). A new challenge: Sight translating texts and social media. Blog retrieved January 19, 2016 from http://najit.org/blog/?tag=sight-translation. Fowler, Y. (2013). Non-English-speaking defendants in the magistrates court: A comparative study of face-to-face and prison video link hearings in England. Unpublished doctoral dissertation, Aston University. Retrieved January 13, 2016 from http://eprints.aston.ac.uk/19442/1/Studentthesis-2013.pdf González, R., Vásquez, V., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. Keselman, O., Cederborg, A., and Linell, P. (2010). “That is not necessary for you to know!” Negotiation of participation status of unaccompanied children in interpretermediated asylum hearings. Interpreting: International Journal of Research and Practice in Interpreting, 12(1), 83–104. Laster, K. and Taylor, V. (1994). Interpreters and the legal system. Sydney: The Federation Press. Lee, J. and Choi, M. (2015). Recommendations for interpreter training for asylum interview settings: The South Korean case. International Journal of Interpreter Education, 7(2), 39–54. Martínez-Gómez, A. (2011). La interpretación en instituciones penitenciarias de la Comunidad Valenciana: La relevancia del componente interpersonal en la calidad de la actuación de intérpretes naturales. Unpublished doctoral dissertation, Universidad de Alicante. Martínez-Gómez, A. (2014). Interpreting in prison settings. Interpreting: International Journal of Research and Practice in Interpreting, 16(2), 233–259. Merlini, R. (2009). Seeking asylum and seeking identity in a mediated encounter: The projection of selves through discursive practices. Interpreting: International Journal of Research and Practice in Interpreting, 11(1), 57–92. Mulayim, S., Lai, M., and Norma, C. (2015). Police investigative interviews and interpreting. Boca Raton, FL: CRC Press. National Association of Judiciary Interpreters and Translators (NAJIT). (2006). Language assistance for law enforcement. NAJIT Position paper. Atlanta, GA: National Association of Judiciary Interpreters and Translators. Retrieved January 29, 2016 from http:// www.najit.org/documents/LanguageforLawEnforcement2006.pdf National Association of Judiciary Interpreters and Translators (NAJIT). (2009). General guidelines and minimum requirements for transcript translation in any legal setting. NAJIT Position paper. Atlanta, GA: National Association of Judiciary Interpreters and Translators. Retrieved January 19, 2016 from http://www.najit.org/publications/p ositions.php. Ortiz Soriano, A. (2015). La imparcialidad en la interpretación policial. In M. Blasco Mayor and M. del Pozo Triviño (Eds.), Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 207–241.

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Pérez, I. and Wilson, C. (2007). Interpreter-mediated police interviews: Working as a professional team. In C. Wadensjö, B. Englund Dimitrova, and A. Nilsson (Eds.), The critical link 4: Professionalisation of interpreting in the community. Selected papers from the 4th International Conference on Interpreting in Legal, Health and Social Service Settings, Stockholm, Sweden, 20–23 May 2004 (pp. 79–93). Amsterdam and Philadelphia: John Benjamins Publishing Company. Pöllabauer, S. (2015). Interpreting in asylum proceedings. In H. Mikkelson and R. Jourdenais (Eds.), The Routledge handbook of interpreting (pp. 202–216). London and New York: Routledge. Taibi, M. and Martin, A. (2012). Court translation and interpreting in times of “the War on Terror”: The case of Taysir Alony. Translation and Interpreting, 4(1), 77–98. Tipton, R. and Furmanek, O. (2016). Dialogue interpreting. London and New York: Routledge. Torstensson, N. and Sullivan, K. (2011). The court interpreter: Creating an interpretation of the facts. International Journal of Law, Language & Discourse, 1(3), 59–83. United Nations High Commissioner for Refugees. (2011). The 1951 Convention relating to the status of refugees and its 1967 protocol. Geneva: UNHCR. Valero-Garcés, C. (2014). Transcription and translation. In H. Mikkelson and R. Jourdenais (Eds.), The Routledge handbook of interpreting (pp. 154–168). London and New York: Routledge. Valero-Garcés, C. and Abkari, A. (2010). Learning from practice: Interpreting at the 11M terrorist attack trial. Translation & Interpreting, 2(2), 44–56. van Kalmthout, A., Hofstee-van der Meulen, F., and Dünkel, F. (Eds.) (2007). Foreigners in European prisons. Nijmegen, the Netherlands: Wolf Legal Publishers.

6

The code of ethics

This chapter will address the critical issue of ethics for court interpreters. We will enumerate some general principles and tie them to the tenets of specific codes of ethics (also known as codes of conduct or codes of professional responsibility), and then explore some aspects of the role of the interpreter that are based on ethical principles but are not yet widely accepted. The chapter will conclude with some practical guidelines for conduct in the courtroom. Every profession has a code of ethics to guide its practitioners, and interpreting is no exception. Regardless of what type of setting they work in, professional interpreters must uphold certain standards, including accurate and faithful interpretation, confidentiality, and impartiality. In the legal environment, given the high stakes involved (personal liberty and property, public security) and the potential for misunderstandings and miscarriages of justice, ethical standards are especially important. Indeed, the Code of Professional Ethics for Court Interpreters of the International Federation of Translators (FIT) begins with a preamble that notes the court interpreter has a crucial role in ensuring a fair trial, basic human rights, and equality before the law. In this chapter, we will review the tenets of the ethical codes that govern court interpreters in various jurisdictions. The specific codes referred to are listed at the end of the chapter. Because each case is unique, and court interpreters are constantly called upon to make instantaneous decisions about appropriate behavior, we will also present some practical guidelines for applying ethical principles in real-life situations.

Canons of the code of ethics Professional associations of court interpreters usually adopt standards that their members agree to uphold. In addition, many jurisdictions have regulations, statutes, or rules of court that set forth the ethical obligations of interpreters. Although specific practices vary from one court to another, there are certain universal features that characterize all codes of ethics. Those features are identified and discussed below: 1 Fidelity The interpreter has a moral and professional – not to mention legal – obligation to convey the complete meaning of the speaker’s message. According to the

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European Legal Interpreters and Translators Association (EULITA) Code of Professional Ethics, The source-language message shall be faithfully rendered in the target language by conserving all elements of the original message while accommodating the syntactic and semantic patterns of the target language. The register, style and tone of the source language shall be conserved. (p. 2) The Standards for Performance and Professional Responsibility for Contract Court Interpreters in the [U.S.] Federal Courts also provide: “The obligation to preserve accuracy includes the interpreter’s duty to correct any error of interpretation discovered by the interpreter during the proceeding” (Canon 1). In some European countries, as well as in Australia, Canada, and the United States, verbatim records are made of court proceedings; but even where witness statements are summarized by the judge, it is important for the judge to first hear a complete interpretation in the first person (not “He says that he saw” but “I saw”) to gain an accurate perception of the speaker’s intent so that it can be reflected in the summary. In other words, any editing that takes place should be done by the judge, not the interpreter. The same holds true for interpreting in police interrogations or interviews by attorneys (see Chapter 5 on interpreting for law enforcement). It is particularly important to refrain from simplifying complex or technical language for the “benefit” of an unsophisticated defendant or witness. Although your natural inclination may be to make sure the listener fully understands the message, in the courtroom setting such well-intentioned editing distorts the legal process, particularly in an adversarial system. The Model Code of Professional Responsibility for Interpreters in the Judiciary, which is intended to guide interpreters throughout the United States, asserts in its preamble that linguistic barriers to communication faced by non-Englishspeaking litigants should be removed “as far as possible, so that these persons are placed in the same position as similarly situated persons for whom there is no such barrier,” and it further clarifies in a footnote, “A non-English speaker should be able to understand just as much as an English speaker with the same level of education and intelligence.” This cautionary note is intended to underline the fact that many laypersons who appear in court are baffled by the language and behavior of court personnel, and the litigant who happens to need an interpreter should not be at an advantage compared to one who speaks the language of the court. The question of what constitutes an accurate interpretation is, of course, a complex one. Translation theorists have been debating the issue for centuries, and this is not the place to further that discussion. Suffice it to say that meaning is contained in both linguistic elements (e.g., words, phrases, grammatical structures) and non-linguistic elements (e.g., tone of voice, pauses, facial expressions, gestures) of a message, and you must account for all elements of

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meaning in your renditions in the target language. The reproduction of witness gestures is a delicate matter. It can be argued that everyone in the courtroom can see the witness and there is no need for the court interpreter to repeat any movements or facial expressions made by the witness. Certain gestures are culture-specific, however, and might be misunderstood without some explanation. As a court interpreter, you must therefore exercise a great deal of discretion in deciding whether intervention is required to convey the full meaning of the witness’s testimony. The interpreter is also obliged to inform the parties of any impediment to a faithful interpretation, such as the inability to hear or understand a speaker, excessively lengthy statements that overtax the memory, rapid speech, or fatigue from long spells of interpreting without a break. If at any point you become aware of an error in your interpretation, you must inform the parties immediately (this may happen even after you have completed an interpreting assignment). Whereas in other settings it may be acceptable for interpreters to gloss over minor gaps in understanding or to generalize when they do not know a specific term, in legal interpreting you must always state clearly when you do not understand something or cannot recall a detail. If you are interpreting in a situation where a verbatim record is being made, you should always clearly distinguish between statements you are interpreting and statements you are making yourself in your capacity as interpreter. In the United States, the standard practice is for interpreters to refer to themselves in the third person (“By the interpreter: Could the question be repeated please?” or “The interpreter would like to make a correction”). 2 Confidentiality According to Article 3 of the FIT Code of Professional Ethics for Court Interpreters, “The court interpreter shall not reveal to any person confidential information that he/she has obtained in the performance of his/her assignment.” Furthermore, the EULITA Code of Professional Ethics provides: “Legal interpreters and legal translators shall refrain from deriving any personal or financial benefit from information they have acquired in the course of an interpreting or translation assignment for judicial purposes, or its preparation” (p. 3). It is a recognized principle of law that anything discussed between an attorney and client is “privileged,” meaning that neither party can be forced to reveal what they said. An interpreter who mediates that conversation falls under the attorney–client privilege. There are certain exceptions to this rule, however. The Code of Conduct of the Australian Institute of Interpreters and Translators (AUSIT) notes in Section 2.4 that “Disclosure of information may be permissible with clients’ agreement or when disclosure is mandated by law.” If there is imminent danger, for example, or if a crime is about to be committed, in many countries the privilege becomes invalid. In addition, interpreters may be considered “mandated reporters” where the law requires certain professionals to disclose information about abuse of children or other

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vulnerable individuals. Another situation in which information about a case may be revealed by an interpreter is when other interpreters coming in to work on the case need to be briefed. Interpreters are generally cautioned not to make any public comment about cases they are assigned to interpret. Sometimes trials become the subject of public controversy, and news reporters may approach the interpreter for “inside information.” It is important to resist the temptation to express opinions or even talk about how the trial is going in general terms, because such statements could be construed as showing bias on the interpreter’s part and could become grounds for appeal. On the other hand, interpreters do need to consult with colleagues and other experts about technical terms or ethical dilemmas that arise in their work. It is perfectly acceptable for you to discuss aspects of a case as part of your research and professional development, as long as you do not reveal names or other sensitive information that might compromise confidentiality. 3 Impartiality Interpreters in all settings are expected to remain impartial, whether they are working at a conference, a seminar, a business meeting, or a press conference. This is especially true in litigation, since the parties are by definition in conflict with each other, and they want to make sure the interpreter does not distort language in a way that favors the other side. According to Article 5 of the FIT Code of Professional Ethics for Court Interpreters, “The court interpreter shall at all times be neutral and impartial. He/she shall not allow his/her personal attitudes or opinions to impinge upon the performance of his/her assignment.” Gile (2009, p. 34) prefers the term “rotating side-taking” to describe the interpreter’s obligation to her clients. Interpreters generally use the first person, which implies that they are the “alter ego” of the speaker whose message they are interpreting at the moment, unless they explicitly state that they are speaking on their own behalf by referring to themselves in the third person. He notes that in some public service settings, including court interpreting, clients and parties may mistakenly expect single-sided loyalty from the interpreter. In his research on court interpreters in Hong Kong, Cheung (2014) found that interpreters who used the third person were perceived as aligned with the party they were interpreting for – whether the legal professional or the limited language proficient (LLP) individual, depending on the perspective – rather than remaining neutral. This is why it is so critical for both interpreters and all the parties they work with to understand the ethical principles that govern their conduct. Although the parties’ differing interests may be more apparent in an adversarial legal system, the neutrality of the interpreter is always essential in any legal setting. Consequently, if the interpreter has close ties with one of the parties (kinship or a business relationship, for example), or has a personal or financial interest in the outcome of the case, there is a conflict of interest, and

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the interpreter should be disqualified. The Standards for Performance and Professional Responsibility for Contract Court Interpreters in the Federal Courts state in Canon 3: “Interpreters shall disclose any real or perceived conflict of interest, including any prior involvement with the case, parties, witnesses or attorneys, and shall not serve in any matter in which they have a conflict of interest.” Several codes further caution interpreters against referring clients to law firms or other businesses even if they do not have a financial interest in the business, because of the appearance of bias that would be created. Merely being acquainted with a party does not create a conflict of interest, but in some situations it is obviously impossible to remain impartial, as when the interpreter is a close relative of the defendant or the victim. Other conflicts of interest are more subtle. Suppose an interpreter in a rape case has been a rape victim herself. It is highly unlikely that she would be able to interpret testimony in an unbiased manner. Another example is an interpreter who is also a police officer. Even if the individual has not acted in a law-enforcement capacity in the case at hand, i.e., did not arrest the suspect and has not participated in the investigation of the facts, there is still an inherent bias in the interpreter’s approach to the case. If you have any doubts about whether you have a conflict of interest, it is best to confer with a judge or other neutral authority who can assess the situation properly. It is also a good idea to disclose to all parties any relationship that might create a potential or apparent conflict of interest, while assuring them of your ability to remain objective. While you may be tempted to take an assignment because you need the income and the experience, tarnishing your reputation by engaging in possibly unethical behavior could harm you in the long run. Another aspect of impartiality that interpreters need to consider is the acceptance of payment. By definition, professional interpreters are paid for their services, but this does not mean that they owe loyalty to the person paying them. Interpreters serve justice and the judicial system in general, and they owe their loyalty to the interpreting profession. Whether you are paid by the court, a law enforcement agency, the law office that has requested your services, or the individual litigant for whom you are interpreting, you have an obligation to interpret accurately to the best of your ability, regardless of the impact that may have on the parties’ cases. Under no circumstances should you ever accept payment in addition to the fee you normally charge for services or agree to any fee contingent on the outcome of the case. A grateful litigant may wish to reward you after winning his case, but such gratuities should be politely declined. Accepting additional payment might give the impression that your performance could be altered with inducements. There is a natural tendency for LLPs to view the interpreter as an ally, a lifeline, especially if they are in a desperate situation. They may ask the interpreter for advice about what they should do or what is going to happen to them. It is tempting to answer such questions by reassuring the person or explaining how the system works. You may sympathize with him, or you may

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be disdainful of him because he broke the law. Remember, though, that your real client is the court and the justice system, not an individual for whom you may be interpreting at the moment, and you must keep your own emotions in check and remain impartial. This neutral attitude is often described as “professional detachment” (Colin and Morris, 1996). There is one exception to the prohibition of explanations by interpreters, applicable only in some countries. Kadric (2001, as cited in Kalina, 2015, p. 74) reports that in many European countries (Austria is mentioned as a typical case), the court interpreter is regarded as an expert and is expected to provide explanations “when the cultural knowledge of one party is not sufficient to understand the other party.” However, you should make sure the particular code of practice that applies to you allows you to intervene in this manner before volunteering such explanations. Moreover, when it is the LLP individual who is unfamiliar with a cultural concept, especially in the asymmetrical environment of the legal system, which is characterized by powerful judges and attorneys and often powerless laypersons, Kalina (2015, p. 80) recommends that “the representatives of the powerful side should admit that concepts which are unknown in the culture of a client must be explained to that client.” She goes on to say, “To be able to act in full awareness of these challenges, an interpreter must be properly trained, highly qualified and rely on codes which offer guidelines for their informed decisions.” Sometimes there is an appearance of partiality, when in fact the interpreter is quite objective. Unfortunately, just belonging to the same ethnic group as the defendant may give some people the impression that the interpreter is “on his side.” While there is nothing you can do about other people’s prejudices, you can prevent the appearance of bias by avoiding extraneous conversations with any of the parties. Above all, you should not have any independent conversation with a person for whom you are interpreting, because it will look like you are giving them advice or interfering with their testimony. You should also refrain from expressing any personal opinions or emotional reactions to what you are interpreting. All codes of ethics for court interpreters prohibit them from giving legal advice. It is important that everyone in the courtroom views you as unbiased so that they will trust in the accuracy of your interpretation. Parties who must rely on an interpreter are forced to relinquish control over the communication, and they are naturally distrustful. Until they are assured that everything is being interpreted accurately, they will worry that the interpreter may betray them or distort what is being said. How can you reassure your clients if they don’t understand what you are saying? In addition to refraining from extraneous conversations, you can gain the confidence of all parties by observing professional conduct. Transparency is another important part of impartiality: all parties should be apprised of what is being said at all times. When you address the court to request a repetition, clarification or any other accommodation, you should do so in the third person, as mentioned earlier, and then provide at least a summary

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of what was said, if not a complete interpretation, for the LLP defendant or witness. Note that in the case of witnesses, there may be objections to your addressing the witness directly, and if your explanation of the transparency principle does not allay the concerns, defer to the judge. Under no circumstances should you initiate a conversation with a witness without requesting the court’s permission first. In the case of defendants, they have a right to hear everything that is said in their case so objections are less likely. Alternatively, if you need to address a query to the witness to clarify a term (after obtaining the court’s permission), afterwards you should provide for the court record a summary of what was said. 4 Professional conduct Canon 4 of the Model Code of Professional Responsibility for Interpreters in the Judiciary provides that “Interpreters shall conduct themselves in a manner consistent with the dignity of the court and shall be as unobtrusive as possible.” In other words, you should not call undue attention to yourself when interpreting testimony, so that everyone in the courtroom can focus on the witness; and you should not disrupt the proceedings by interpreting too loudly or obstructing sight lines. You should be sure to observe the protocol of the court where you are working, which includes using the proper forms of address for courtroom personnel (“Your Honor,” “My Lord,” “Counsel,” etc.), and bowing or standing and sitting at the appropriate times. Several of the codes cited here also mention punctuality and courtesy. Professional conduct also refers to relations with colleagues. For example, the EULITA Code of Professional Ethics provides, “Legal interpreters and legal translators shall act in a spirit of respect, cooperation and solidarity towards their colleagues” (p. 3). This collegiality is essential for maintaining the dignity of the profession and earning the respect of other legal professionals. Moreover, collaborating with other interpreters, particularly when you are working on a team, contributes to accuracy and completeness. When engaging in team interpreting, you should monitor your colleague when you are not interpreting and be ready to support her by researching terms and looking out for her well-being, which she will do for you in turn. Interpreters should not air differences of opinion on terminology in open court, but rather should ask the court’s permission to confer in private to resolve the issue. In case of any dispute or complaint lodged against an interpreter, whether by a colleague or a client, it should be resolved by means of whatever mechanism the court or the professional association has in place for handling disciplinary matters. Another important aspect of professional conduct is honesty and integrity. Most of the codes of ethics contain provisions asserting that interpreters should not accept assignments for which they are not qualified. A typical provision is that which can be found in the FIT Code of Professional Ethics for Court Interpreters, Article 6: “The court interpreter shall only accept assignments for which he/she possesses the requisite knowledge and skill. The

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court interpreter shall be responsible for the correctness of his/her interpretation and shall correct any mistakes that he/she makes.” If at any point you become aware of a problem in rendering competent interpreting services, you must notify the client. In the words of the Model Code of Professional Responsibility for Interpreters in the Judiciary, Canon 8, “Interpreters shall assess at all times their ability to deliver their services. When interpreters have any reservation about their ability to satisfy an assignment competently, they shall immediately convey that reservation to the appropriate judicial authority.” For example, if you are asked to interpret for a witness and you discover upon arrival at the court that she speaks a dialect you are not familiar with, you should withdraw from the case. Similarly, if the testimony turns to a technical subject matter you did not anticipate and you do not know the correct terminology, you should inform the court and request a recess to research the terms, or request that an interpreter more conversant with the subject matter at hand be assigned to the case. You must also report impediments to your performance, such as inaudibility or fatigue. Professional development is another key element of professionalism for court interpreters. For this reason, many credentialing programs require interpreters to show proof of a certain number of hours of continuing education as a condition of maintaining their credential. A typical statement of this obligation is this provision of the EULITA Code of Professional Ethics: “Legal interpreters and legal translators shall strive to maintain and improve their interpreting and translation skills and knowledge” (p. 2). As González et al. (2012, p. 1142) note, Because human language is dynamic and ever changing, it is extremely important for court interpreters to keep abreast of the latest changes in usage, both by the public at large and by the specialized groups for whom they interpret (the legal community, court personnel, immigrant communities, gangs, and so on). Moreover, interpreting skills themselves require constant honing. For this reason, continuing education is a vital part of the interpreters’ professional activities.

Revisiting the role of the interpreter The principles outlined so far in this chapter are intended to provide general guidance for court interpreters as they navigate the waters of the legal system in which they work. However, often interpreters are faced with dilemmas that do not fit in the black and white categories of a code of ethics. Furthermore, as Morris (2010, p. 23) points out, “Interpreters do not ‘check their humanity’ at the door of the courtroom.” It would be a good idea for our profession to develop formal standards of practice to accompany our codes of ethics, much as healthcare interpreters have done in the United States. The National Council on Interpreting in Health Care (NCIHC) defines the important

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distinction between these two concepts: “Standards of practice are concerned with the ‘hows’ of performance as compared with codes of ethics that focus on the ‘shoulds’” (National Council on Interpreting in Health Care, 2005, p. 1). First, it is worth noting that research has shown that interpreters are not really invisible non-participants in the interactions they mediate (Angelelli, 2003; Metzger, 1999; Wadensjö, 1998). Leung and Gibbons (2008) surveyed court interpreters who worked in sexual assault cases and found that, though in principle interpreters should attempt to be neutral, they are not machines. When confronted with ideological and moral issues they feel strongly about, it is not always possible for interpreters to remain impartial. Several authors have lamented the fact that interpreters are given few guideposts to help them resolve the ethical dilemmas that inevitably arise in the legal sector. An example of such a situation is the widely publicized position taken by Erik Camayd-Freixas in the Postville case. In that incident he was asked to participate as an interpreter in proceedings that he considered unethical on the grounds that the defendants’ due process rights were violated. He went ahead and interpreted in the matter, but afterwards he expressed his opinion on it in a national publication. The response of the interpreting profession was quite strong, with some criticizing him for breaching confidentiality or remaining on a case that posed a conflict of interest for him, and others lauding his courage (Camayd-Freixas, 2008; González et al., 2012; Morris, 2010). A number of scholars have discussed the fact that those who stray from the rigid roles defined by ethical codes feel guilty and stressed, and are reluctant to admit that there are times when they have shed the cloak of invisibility they think they are supposed to wear at all times (Dean and Pollard, 2011; Mikkelson, 1998, 2008; Moeketsi and Wallmach, 2005; Morris, 1995, 1999 and 2010; WitterMerithew, 1999). These writers urge more training in resolving difficult ethical issues so that interpreters can develop the professional judgment they need to deal with conflicting demands. Some “handrails for the slippery slope” can be found in Mikkelson (2008). Below are some suggestions of what you might do in specific situations.

Practical guidelines Codes of ethics are intended to guide court interpreters, but learning and internalizing basic ethical principles such as confidentiality and impartiality may not be enough to help them make the split-second, high-stakes decisions that come up so frequently in court. Moreover, the other players in the courtroom (including, unfortunately, judges and lawyers) are not familiar with the interpreter’s code of ethics, and may inadvertently ask the interpreter to violate it. As Hale and Luzardo (1997, p. 10) point out, Even though a number of complementary codes of ethics exist …, these are unknown to the interpreters’ “clients”. We often find therefore, that either the service provider or, more likely, the non English speaker, will expect

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For example, any court interpreter who has gone through even the most rudimentary training program can regurgitate the tenet “Interpreters shall not give legal advice”; but sometimes a request for legal advice is not so easy to recognize. Suppose that during a break in the proceedings the defendant says to the interpreter, “They’re accusing me of ‘conspiracy.’ What does that mean?” A well-meaning interpreter might try to be helpful by answering that question, but in fact it requires legal expertise to answer accurately, and the interpreter will find herself on the proverbial slippery slope leading to practicing law without a license. Even if she recognizes that it is unethical to answer the question, she is hard-pressed to find a way to decline without appearing to be rude or ignorant. Alternatively, if a judge tells an interpreter not to interpret a statement he makes on the bench in open court, the interpreter may be aware that she has an obligation to interpret everything, but is too intimidated by the judge to speak up. Because similar dilemmas arise constantly in the interpreter’s day-to-day work, and because a code of ethics is not designed to provide an answer for every specific problem, it is helpful to learn how to respond to real-life situations in a safe environment by engaging in role-playing exercises. Rehearsing effective responses will make it easier to say the right thing under pressure in the courtroom. Below are some practical guidelines, presented in the form of answers to typical questions from novice interpreters, followed by some scenarios for role-playing to help you develop your own responses to ethical dilemmas. What should I do when I go to court for the first time? First impressions are extremely important. It is a good idea to go to the court where you will be working the day before your interpreting assignment to learn the layout of the courthouse and observe the behavior and dress of court personnel. On the day of your assignment, wear appropriate attire and arrive early at the courthouse. Report to the clerk’s office (or whatever office is responsible for hiring interpreters), introduce yourself, and find out what courtroom(s) you will be working in. This is also an appropriate time to discuss payment and billing procedures. As soon as you arrive in the courtroom, introduce yourself to the relevant court personnel and identify the parties who will require your services. Then introduce yourself to the parties and explain your role, as indicated below. When you have completed your interpreting assignment, before leaving check with the clerk to make sure you are not needed for another witness or in another courtroom. Such common courtesies

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are important for maintaining professional relationships and will ensure that you are called again to interpret in that court. How can I prepare myself for interpreting assignments? When you are given an interpreting assignment, find out what kind of case(s) you will be interpreting for (criminal or civil, nature of the charges or complaints, whether you will be interpreting for witnesses or the defendant) and how long the proceeding is likely to last. In jurisdictions where it is allowed, request permission to view the case file before the proceedings start so that you can familiarize yourself with the facts and begin researching terms. Some countries prohibit such access, but even where it is allowed court personnel may be reluctant to provide you with this information, especially if they are not accustomed to working with professional interpreters. If you explain to them that this is a normal part of preparation for an interpreting assignment that will enable you to do an adequate job, they are more likely to cooperate. Ask for the names of the attorneys involved so that you can contact them and find out more about the nature of the case. When you determine what the case is about, consult relevant websites and avail yourself of the appropriate dictionaries, glossaries, and other references. Is it all right if I consult dictionaries or online resources in court? Won’t people doubt my competence if they see me looking up terms? Dictionaries and glossaries are indispensable working tools for the interpreter. Lawyers and judges frequently consult legal references during the course of their work, and interpreters are no different. Of course, you should be proficient enough in your working languages that you do not have to look up terms that one could normally expect to encounter in a court proceeding; but there is always the possibility that an unfamiliar term will arise, and you should be prepared to deal with it. (Note, however, that many courts prohibit any connections to the Internet during court proceedings and may require cell phones to be turned off.) If you exhibit the professional demeanor discussed previously in this chapter, your clients will have confidence in your abilities. What should I say when I introduce myself? When you introduce yourself to court personnel, state your name and hand them a business card, if you have one, and tell them the language you interpret and the case you have been assigned to. In the case of the judge and the lawyers, you should also ascertain whether they have worked with interpreters before and are familiar with your role. If you feel it is appropriate, remind them that you will interpret everything that is said in court, and that you are not allowed to give legal advice or perform any tasks beyond interpreting, such as explaining documents or procedures. State that you would like to meet with the witness or client and briefly explain your role. When you introduce yourself to the defendant or witness you will be interpreting for, you may also want to say something like this:

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The code of ethics Have you ever worked with an interpreter before? Please bear in mind that I will interpret everything you say, and everything everyone else says in the courtroom, as if they were my own words. Please don’t say anything you do not want to have interpreted. I’m not allowed to explain or clarify anything, so if you have any questions, please direct them to the judge or to your lawyer, and I will interpret for you. When you are testifying, if you are going to give a long answer, please pause occasionally to allow me to interpret phrase by phrase so that I can interpret as accurately as possible. Do you have any trouble understanding me? Do you have any questions?

Note that in this brief interview with the client, there is no discussion of the facts in the case, so there is no danger of your being prejudiced or influencing the testimony in any way. When the person answers your questions, you will have an opportunity to become accustomed to his or her accent, speaking style, and vocabulary. If your reading of the case file has led you to believe there may be problems with the translation of a critical term, you may ask the client what term he or she uses for that concept or object. What if a witness or lawyer uses a term I don’t know? Under no circumstances should you guess at an unknown term or omit it from your interpretation. Inform the court that you are unable to interpret it and ask permission either to consult a dictionary or colleague, or to request clarification from the person who used the term. To maintain full transparency, make sure you avoid having any conversation with any of the parties without first informing the court of the situation, so as not to raise suspicions among those who do not understand the language you are speaking. For example, you might say, “Your Honor, the witness has used a term the interpreter is not familiar with. May the interpreter inquire?” It is advisable to refer to yourself in the third person to make it clear to everyone that you are not interpreting the witness’s words, but are speaking as the interpreter. A related problem is vague or ambiguous statements, which are sometimes difficult to interpret with the same degree of ambiguity in the target language. The pronoun “you” in English can be either singular or plural, for example, and you may need to clarify what is meant before you can interpret it accurately. On the other hand, some questions and answers may be deliberately vague, and attempts by the interpreter to clarify them could interfere with the examination of the witness (this is particularly true in adversarial proceedings). Therefore, you should be very cautious about intervening to request clarification. What if I realize I made a mistake in my interpretation of earlier testimony? Inform the court of the error and correct the mistake as soon as you become aware of it. You might say something like, “The interpreter would like to correct the record. Previously when I said ‘red’ I should have said ‘purple.’” It

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is never too late to correct an error; even if you have completed your assignment and gone home, you should still contact the court and report the error. What if the speaker makes an obvious mistake? Simply interpret the erroneous statement. Even if it is a slip of the tongue, such as addressing the witness by the wrong name or misquoting a date, it should be interpreted as is. Always remember that if there were no interpreter present, the error would still be made and it would go uncorrected. What if I forget part of a statement that I’m interpreting consecutively? Inform the court that you need to have the statement repeated. You should develop your memory and note-taking skills to the point that requests for repetitions are rare occurrences, but all interpreters need them now and then (see Chapter 7 for more detailed information on interpreting strategies). If you use the proper protocol and don’t ask for repetitions too frequently, no one will doubt your competence as an interpreter. What if the parties address me directly instead of each other? Often lawyers who are not accustomed to working with interpreters will preface a question with “Ask him if he saw…” rather than “Did you see …?” A gentle reminder is usually sufficient to break this habit. You might ask the court, “Could counsel be instructed to address the witness directly rather than in the third person?” If this practice persists, simply interpret the question as it is asked. The witness may very well respond with “Whom do you want me to ask?”, which will serve as another reminder. If the witness addresses you directly (“Tell him that…”), follow the same procedure. Sometimes a witness will refer to the interpreter in testimony, saying something like “Well, he was about as far away as you are from me.” In that case, you may inform the court that the witness was referring to you, the interpreter. What if one of the parties uses inappropriate language or says something I know will not be understood correctly? Courtroom testimony, especially in criminal cases, sometimes involves obscene language or graphic descriptions of sex or violence. Although it may embarrass you to interpret such language, you have an obligation to interpret faithfully, without omitting any content or altering the tone. It may help you to bear in mind that judges and lawyers have heard this kind of testimony many times before, and they know you are performing your duty by interpreting these words. Remember that the witness’s credibility is being judged and the facts determined on the basis of this testimony, and it should not be distorted for the sake of decorum. Another common problem is that the highly sophisticated language used by judges and lawyers may not be understood by laypersons with little or no formal education. It may be tempting to simplify a question posed in very formal language, such as, “Prior to the incident in question, had you ever

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visited the residence of the decedent?” when you know that the witness is not likely to understand it. Suppose you rendered the question as “Before the killing, had you been to the victim’s house?” If the witness gave a straightforward answer, everyone in the courtroom would assume he understood the original question, and they would misperceive his level of sophistication. If you interpreted the question at the high register of the original, the witness would probably respond with a blank look, a non-responsive answer, or a request for clarification, and the problem would become apparent to all. Then the lawyer could rephrase the question however he saw fit, and you would not be taking the responsibility of making the question understandable. Yet another typical problem is references to cultural notions that do not exist in the target language. Kinship terms, for example, vary tremendously from one language to another. Sometimes determining the exact relationship between two people is critical, and an explanation may be required. On the other hand, sometimes the term is just a passing reference to someone and can be rendered more generically (e.g., “He is my cousin,” rather than “He is the youngest son of my mother’s eldest brother”). If an explanation is required, it is best to simply inform the court that there is a cultural issue, without offering the explanation yourself, and suggest that the witness be asked to clarify in his own words. As the court interpreter, you are a language expert, and you are not necessarily qualified to give testimony about cultural practices. An example of a cultural difference that requires a more comprehensive solution is the concept of guilt. González et al. (2012) and Moeketsi (1999) point out that some cultures have no such concept, so this essential element of criminal law cannot be translated. If you are aware of such a problem in your language combination, you can alert the judge and attorneys to it ahead of time so that they can plan extra time for explanations and possibly even call in expert witnesses. What if I realize in the middle of an interpreting assignment that I am not able to do an adequate job? If the problem is that the proceedings become complicated and technical and you are not prepared to deal with the terminology, you may ask for a recess to obtain the appropriate resources and conduct research, or you may recommend a colleague who is more qualified to handle the case. You may discover that a witness or defendant speaks a dialect that you have trouble understanding, in which case you should immediately inform the court so that another interpreter can be found. If you find that you are overwhelmed by the pace of the proceedings or the emotional atmosphere, you may request a break. In short, whenever any problem arises that interferes with your ability to interpret properly, such as rapid speech, inaudibility, technical complexity, or fatigue, you should inform the court so that appropriate steps can be taken. To prevent fatigue and the resultant errors, lengthy proceedings should be interpreted by pairs of interpreters who spell each other at intervals of 30 to 45 minutes, following the practice of conference interpreters.

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Should I mimic the witness’s testimony exactly, with the same tone of voice, facial expressions, and gestures? All of these elements are part of the message and should be accounted for in the interpretation. If the witness is uncertain and speaks hesitantly, your interpretation should reflect all of the hedges, self-corrections, and fragmented ideas of the original. On the other hand, there is a fine line between interpreting precisely and making a mockery of the proceedings. If you were to burst into tears or pound on the table exactly as the witness did, you would turn the testimony into a comedy routine, and the people in the courtroom would end up paying more attention to the spectacle than to the content of the witness’s testimony. Therefore, you should retain the emphasis of the original while slightly attenuating your tone of voice. Actions such as crying and grimacing can be seen by everyone in the courtroom and do not need to be reproduced unless there is a potential for misunderstanding due to cultural differences. If the witness points to a place in the courtroom or a part of his body, or indicates a measurement or motion with his hands, you should just interpret the words accompanying the gesture (“He hit me here,” “It was about this long,” etc.). In proceedings where a verbatim record is being made, the judge or the examining counsel can describe the witness’s actions for the record. Note that while it is appropriate to reflect the emotions of the witness in your interpretation, it is not appropriate to display your own emotions. Sometimes testimony in court cases can be rather shocking, and exhibits such as graphic photographs of the crime scene or bloody clothing may be introduced into evidence. On other occasions, parties may make humorous remarks, wittingly or unwittingly. In all these cases it is important for you to suppress your own reactions and remain impartial and detached. How do I respond when a judge or lawyer tells me to do something I know is unethical? Fending off requests to violate the code of ethics is a delicate task, especially when dealing with someone with the authority of a judge. Suppose a judge tells you to make sure the accused understands his rights. You could say, “Your Honor, my code of ethics prohibits me from explaining things, as that would amount to giving legal advice, but I will gladly interpret anything you or his counsel wishes to explain to him.” This is a polite and respectful way of declining to perform the task while suggesting an alternative. On the other hand, you may be asked by defense attorneys, prosecutors, investigators, or police officers to perform tasks that are unethical, such as revealing information you have acquired during the course of your interpreting, or taking a statement or otherwise obtaining information from the client or witness. These may be people with whom you work on a daily basis, and you want to maintain good relations with them. In this case, though you will still decline to perform the task, you may want to use an informal and humorous tone: “Oh, come on, you know I can’t do that. Let’s agree that I stick to interpreting and you stick to practicing law.”

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As Hale and Luzardo (1997) have remarked, the laypersons for whom we interpret often misunderstand our role as well. For example, it is common for defendants to ask their interpreter, whom they regard as an ally, what they should do, how the trial is going, or whether their lawyer is any good. Although interpreters know they should not answer such questions, it is hard to decline without appearing to be discourteous, and they do want to maintain a relationship of trust with the client. It is best to avoid being in a situation that encourages such questions in the first place. In other words, you should not sit with the accused while waiting for the case to be called or during a break in the proceedings. Distancing yourself from the defendant in this way not only saves you from dealing with inappropriate questions, but also helps you avoid the appearance of bias created by conversing with the defendant, and gives you a much-needed rest from talking. If somehow you do find yourself being asked questions by a defendant or witness, you can politely decline to answer and point out that, much as you would like to oblige, you might get in trouble or lose your job for violating the code of ethics. This response is also helpful when clients try to offer gifts or payment in gratitude for your services, something which is very hard to refuse in many cultures but is a clear breach of the interpreter’s code of ethics. Should I disqualify myself from a court case if I interpreted during the police investigation? As a professional interpreter, there is no inherent conflict of interest if you interpret for law enforcement agencies as well as the defense; you should be able to remain impartial regardless of who has hired you to interpret. On the other hand, there may be a perception of bias in the defendant’s eyes if, for example, you interpreted the police interrogation when he was arrested and then you show up to interpret in the consultation with his lawyer. He may feel that you are prejudiced against him, or will reveal information to the prosecution. In this case, full disclosure is the answer. You can inform all parties of your prior involvement in the case and allow them to decide whether they wish to continue using your services. The judges and lawyers usually know nothing about my people. How can I educate them to avoid cultural misunderstandings while remaining impartial and unobtrusive? While it is not appropriate for you to intervene in the proceedings to provide extensive explanations or clarifications of a cultural nature, there are other opportunities to educate legal professionals. On a personal level, you can contact the defense attorney or the prosecutor before going to court and warn them of any potential problems, or request permission to speak with the judge before the case begins. You can recommend some books or articles for them to read, or some cultural experts who might be consulted. Be careful not to provide information to one party that the other does not have access to, however, as you would lose your impartiality. An example of information that

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could legitimately be provided to one side only, most likely during preparation for testimony, would be the fact that nodding the head does not signify understanding in the defendant’s or witness’s culture. An example of information that should be shared with both defense and prosecution would be the identity of a professor of cultural anthropology who could provide information about marital customs in the defendant’s or victim’s culture. Another way to educate legal professionals that protects the impartiality of individual interpreters is for an interpreters’ association or an ethnic advocacy group to present workshops for judges and lawyers to promote cross-cultural understanding. The judges and lawyers, in turn, could be invited to address community groups to educate them about the justice system.

Conclusion Developing and enforcing a code of professional conduct is a very complex process. Although court interpreting has been practiced for centuries, only recently have legislators, jurists, and practitioners begun to examine the role of the interpreter in the courtroom and codify standards of performance. This effort is more advanced in some countries than in others, and even in jurisdictions where interpreters and legal professionals are well trained in proper procedure, solutions to ethical problems are not always clear-cut. There are still many courts throughout the world where very little thought has been given to the consequences of inappropriate behavior in interpreted cases. Therefore, individual interpreters who attempt to adhere to strict standards may encounter resistance from legal professionals or colleagues who are reluctant to change their ways. The ethical principles presented here are ideal norms that all interpreters should strive to uphold, but the realities of day-to-day life in the justice system cannot be ignored. For example, Moeketsi (1999) indicates that interpreters operate under very difficult circumstances in systems where the asymmetry or imbalance of power between court personnel and defendants is particularly acute. In South Africa, she reports, interpreters often feel compelled to take action that would be considered unethical in another context. She cites the case of an interpreter who renders the magistrate’s simple question “Do you have a lawyer?” as “Do you have a legal representative? This court allows you to seek your own lawyer. If you do not have money, you can use the lawyers paid for by the state.” Her analysis: Here, the court interpreter added information to the magistrate’s question. … [H]is experience tells him that defendants are skeptic[al] of State Legal Aid because they find it hard to reconcile the fact that the state wants to prosecute them on the one hand and provides them with defence attorneys on the other. The court interpreter knows that the magistrate’s neglect to communicate that vital information is an irregularity that could lead to miscarriage of justice. Is he therefore expected to behave like a so-called

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This chapter thus ends with a question, a reflection of the uncertainties that still prevail in the theory and practice of court interpreting.

Role-play scenarios Directions: Act out the following scenarios with your fellow students and explore different solutions to the problems posed. (A) You are interpreting in an interview between a defense attorney and his client, an elderly gentleman. The attorney calls the man by his first name and generally treats him in a casual, familiar way that is considered unacceptable in the defendant’s culture. The defendant says to you, “I don’t like this lawyer’s attitude. Don’t you think I should get another lawyer?” (B) You are interpreting at a sentencing, and it is clear to you that the defendant is intoxicated: he has a strong odor of alcohol on his breath, and he has trouble maintaining his balance. The judge asks the defendant a series of questions to determine whether he is ready to proceed. In response to the question “Are you taking medication or under the influence of any substance that would impair your judgment?” the defendant answers no. The defense attorney says nothing. (C) At a sentencing hearing, the judge imposes a stiff sentence on the defendant and declares the court in recess. As everyone is leaving the courtroom, the defendant whispers to you that he is going to take his revenge on the judge. (D) During your pre-testimony briefing of a prosecution witness, she confides to you that a member of the defendant’s family has contacted her and threatened that if she doesn’t change her testimony, she will suffer grave consequences. (E) You are interpreting in a criminal case for a defendant for whom you have previously interpreted in a mental hospital. You know from your earlier assignment that he has been diagnosed with schizophrenia and must take medication daily. He is being held in custody and has not been taking the medication. The defense counsel is not aware of his medical history. (F) You are interpreting on the witness stand for an eye witness to a gang‐ related assault. From the witness stand, you and the witness can see two members of the audience making threatening gestures and gang signs to the witness, who begins to retract his earlier statements to the police. No one else in the courtroom seems to be aware of the situation.

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(G) You have been asked to interpret for a defendant in a case in which both he and his wife have been accused of drug crimes. The wife has her own attorney. At a joint meeting to discuss a possible settlement of the case, the spouses begin arguing. Both attorneys ask you to interpret simultaneously for them what the husband and wife are saying.

Additional study activities 1 2

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How would you answer the question posed by Rosemary Moeketsi in the citation at the end of this chapter? Give the reasons for your position. Read Erik Camayd-Freixas’s personal account of the Postville case at http://graphics8.nytimes.com/images/2008/07/14/opinion/14ed-camayd.pdf and discuss it with your classmates. Do you think the interpreter acted properly? Why or why not? Write a code of ethics that incorporates the particular characteristics of the language combination and the court system in which you will be working. Translate it into your working languages and discuss the ethical and linguistic problems that arise. Think of a cultural issue that might arise in the course of your work, and explain how you would deal with it in a manner consistent with the ethical principles discussed in this chapter. Discuss ways in which court interpreters in your country might educate legal professionals about cultural issues that are of importance to court proceedings.

Suggestions for further reading In addition to the references cited in this chapter, the following books and articles contain interesting discussions of ethical issues: Baigorri-Jalón, J. (2014). From Paris to Nuremberg: The birth of conference interpreting. Translated by H. Mikkelson and B. Slaughter Olsen. Amsterdam and New York: John Benjamins Publishing Company. Camayd-Freixas, E. (2013). Court interpreter ethics and the role of professional organizations. In C. Schäffner et al. (Eds.), Interpreting in a changing landscape: Selected papers from Critical Link 6 (pp. 15–30). Amsterdam and Philadelphia: John Benjamins Publishing Company. Fowler, Y. (1997). The courtroom interpreter: Paragon and intruder? In S. Carr, R. Roberts, A. Dufour, and D. Steyn (Eds.), The critical link: Interpreters in the community (pp. 191–200). Amsterdam and Philadelphia: John Benjamins Publishing Company. Inghilleri, M. (2011). Interpreting justice, ethics, politics and language. London: Routledge. Kalina, S. (2015). Ethical challenges in different interpreting settings. In C. Iliescu Gheorghiu and J. Ortega Herráez (Eds.), Insights in interpreting:

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Status and developments. Monographs in Translation and Interpreting, Special Issue 2, 63–86. Martinsen, B. and Dubslaff, F. (2010). The cooperative courtroom: A case study of interpreting gone wrong. Interpreting: International Journal of Research and Practice in Interpreting, 12(1), 21–59. Mikkelson, H. (1998). Towards a redefinition of the role of the court interpreter. Interpreting: International Journal of Research and Practice in Interpreting, 3(1), 21–45. Mildren, D. (1999). Redressing the imbalance: Aboriginal people in the criminal justice system. Forensic Linguistics, 6(1), 137–160. Shlesinger, M. (1991). Interpreter latitude vs. due process: Simultaneous and consecutive interpretation in multilingual trials. In S. Tikkonen-Condit (Ed.), Empirical research in translation and intercultural studies (pp. 147–155). Tübingen: Gunther Narr. Takeda, K. (2010). Interpreting the Tokyo War Crimes Tribunal: A sociopolitical analysis. Ottawa: University of Ottawa Press. Vilela Biasi, E. (2003). Court interpreters as social actors: Venezuela, a case study. In L. Brunette, G. Bastin, I. Hemlin, and H. Clarke (Eds.), The critical link 3: Interpreters in the community (pp. 239–245). Amsterdam and Philadelphia: John Benjamins Publishing Company.

Codes of ethics The NAJIT Code of Ethics and Professional Responsibilities appears in Appendix A of this volume. Many codes of conduct can be found online. A partial list follows: EULITA Code of Professional Ethics: http://www.eulita.eu/sites/default/files/ EULITA-code-London-e.pdf. International Federation of Translators (FIT) Code of Professional Ethics for Court Interpreters: http://www.fit-europe.org/vault/EthSuomi.html The FIT also provides links to the codes of many European interpreters’ associations at http://www.fit-europe.org/en/what-we-do/completed-projects/ codes-ethics. AUSIT Code of Ethics and Code of Conduct:http://ausit.org/ausit/documents/ code_of_ethics_full.pdf. Registry of Interpreters for the Deaf (RID) Code of Professional Conduct: http://rid.org/ethics/code-of-professional-conduct/. Administrative Office of the U.S. Courts Standards for Performance and Professional Responsibility for Contract Court Interpreters in the Federal Courts:http://www.scd.uscourts.gov/interpreter/StandardforPerformanceand ProfessionalResponsibility.pdf National Center for State Courts Model Code of Professional Responsibility for Interpreters in the Judiciary: http://ncsc.contentdm.oclc.org/cdm/ref/col lection/accessfair/id/118

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References Angelelli, C. (2003). The interpersonal role of the interpreter in cross-cultural communication: A survey of conference, court and medical interpreters in the US, Canada and Mexico. In L. Brunette, G. Bastin, I. Hemlin, and H. Clarke (Eds.), The critical link 3, Interpreters in the community (pp. 15–26). Amsterdam and Philadelphia: John Benjamins Publishing Company. Camayd-Freixas, E. (2008). Interpreting after the largest ICE raid in US history: A personal account. Retrieved May 5, 2016 from http://graphics8.nytimes.com/images/ 2008/07/14/opinion/14ed-camayd.pdf. Cheung, A. (2014). The use of reported speech and the perceived neutrality of court interpreters. Interpreting: International Journal of Research and Practice in Interpreting, 16(2), 191–208. Colin, J. and Morris, R. (1996). Interpreters and the legal process. Winchester: Waterside Press. Dean, R. and Pollard, R. (2011). Context-based ethical reasoning in interpreting: A demand control schema perspective. The Interpreter and Translator Trainer, 5(1), 155–182. Gile, D. (2009). Basic concepts and models for interpreter and translator training, Rev. ed. Amsterdam and Philadelphia: John Benjamins Publishing Company. González, R., Vásquez, V., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. Hale, S. and Luzardo, C. (1997). What am I expected to do? The interpreter’s ethical dilemma: a study of Arabic, Spanish and Vietnamese speakers’ perceptions and expectations of interpreters. Antipodean, The Australian Translation Journal, 1, 10–16. Kalina, S. (2015). Ethical challenges in different interpreting settings. In C. Iliescu Gheorghiu and J. Ortega Herráez (Eds.), Insights in interpreting: Status and developments. Monographs in Translation and Interpreting, Special Issue 2, 63–86. Leung, E. and Gibbons, J. (2008). Who is responsible? Participant roles in legal interpreting cases. Multilingua, 27(3), 177–191. Metzger, M. (1999). Sign language interpreting: Deconstructing the myth of neutrality. Washington, DC: Gallaudet University Press. Mikkelson, H. (1998). Towards a redefinition of the role of the court interpreter. Interpreting: International Journal of Research and Practice in Interpreting, 3(1), 21–45. Mikkelson, H. (2008). Evolving views of the court interpreter’s role: Between Scylla and Charybdis. In C. Valero-Garcés and A. Martin (Eds.), Crossing borders in community interpreting: Definitions and dilemmas (pp. 81–97). Amsterdam: John Benjamins Publishing Company. Moeketsi, R. (1999). Redefining the role of the South African Court Interpreter. Proteus, 3(3–4), 12–15. Moeketsi, R. and Wallmach, K. (2005). From sphaza to makoya!: A BA degree for court interpreters in South Africa. Speech, Language and the Law, 12(1), 77–108. Morris, R. (1995). The moral dilemmas of court interpreting. The Translator, 1(1), 25–46. Morris, R. (1999). The gum syndrome: Predicaments in court interpreting. Forensic Linguistics, 6(1), 6–29. Morris, R. (2010). Images of the court interpreter: Professional identity, role definition and self-image. Translation and Interpreting Studies, 5(1), 20–40. National Council on Interpreting in Health Care. (2005). National standards of practice for interpreters in health care. Retrieved January 21, 2016 from http://www.

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ncihc.org/assets/documents/publications/NCIHC%20National%20Standards%20of %20Practice.pdf. Tipton, R. and Furmanek, O. (2016). Dialogue interpreting. London and New York: Routledge. Wadensjö, C. (1998). Interpreting as interaction. London and New York: Addison Wesley Longman. Witter-Merithew, A. (1999). From benevolent care-taker to ally: The evolving role of sign language interpreters in the United States of America. Gebärdensprachdolmetschen Theorie & Praxis, 4, 55–64.

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Much of the discussion of court interpreting, including the preceding chapters in this book, examines the phenomenon externally, looking at the behavior of the interpreter with respect to other actors in the courtroom and society at large. In this chapter we will shift the emphasis to the internal aspects of the legal interpreter’s work, the nuts and bolts, if you will. After defining interpreting in general, we will examine each of the three modes of interpreting in detail as they are practiced in the judiciary setting, and will then look at document translation, since court interpreters are often asked to perform this task as well. The chapter will conclude with some practical exercises designed to enhance interpreting skills.

Definition of interpreting Pöchhacker (2016, p. 11) defines interpreting in this manner: Interpreting is a form of Translation in which a first and final rendition in another language is produced on the basis of a one-time presentation of an utterance in the source language. (emphasis in original) Normally, interpreting is considered to be the transfer of an oral message from one language to another in real time, as opposed to translating, which is the transfer of a written message from one language to another and may take place years after the original message is written; note that the term translation is also often used to denote the overall process of interlingual meaning transfer, regardless of whether it is written or oral. In the case of sign language, interpreting involves transferring a message from an oral mode to a visual mode or vice-versa, also in real time. This seemingly simple process is complicated by the fact that it is difficult to define all of the elements that make up a message, and to transfer all of those elements intact from the source language (the language of the original message) to the target language (the language into which the message is being interpreted or translated). Whether we are talking about interpreting or translating, scholars have concluded that “equivalence” when transferring a message from one language

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to another is a multifaceted concept that cannot be accepted at face value and must be tempered with the nuance of uncertainty. Gile (2009, p. 52) attributes the problem to the fact that “languages are not isomorphic”: Firstly, there are obvious differences in the lexicons and grammars of different languages, for instance with ‘missing’ words in some and an ‘abundance’ of words around the same referents in others. … Secondly, while many lexical units and rules of grammar in two languages look similar at first glance and may even be described as having the same functions in dictionaries and grammar textbooks, there are often subtle differences in their use in context. The issue of accuracy or fidelity in translation and interpretation has been addressed extensively and masterfully in other works (summarized in Pöchhacker, 2016). The broadly accepted standard is that interpreters should strive to retain every element of the source-language message in the target-language version, including not only lexical content, but also style, tone, and nuance. In his book on conference interpreting, Jones (2002, p. 4) stresses that “interpreters must bridge the cultural and conceptual gaps” in addition to the purely linguistic ones that separate speakers of different languages, and may deviate from the letter of the original “only if it enhances the audience’s understanding of the speaker’s meaning.” What do interpreters need to know in order to bridge these gaps? Pöchhacker (2016) lists the personal qualities and abilities that have been deemed necessary to become an interpreter, including cognitive abilities (intelligence, intuition, memory, concentration), moral and affective qualities (discretion, alertness, poise, judgment, adaptability), physical stamina and strong nerves, language proficiency and broad general knowledge, and good public speaking skills. With regard to the judicial setting in particular, González et al. (2012, p. 14) emphasize that the court interpreter is required to interpret the original source material without editing, summarizing, deleting, or adding, while conserving the language level, style, tone, and intent of the speaker, or to construct what may be termed the legal equivalent of the source message. In this setting, you will face far more constraints than interpreters in other spheres, where guaranteeing the audience’s understanding of the message is an essential part of the interpreter’s role. The court interpreter’s function is not necessarily to ensure understanding, but rather to put the target-language audience on an equal footing with speakers of the source language. As mentioned in Chapter 1, many laypersons who come in contact with the judicial system do not fully understand the language used by legal professionals even when they are native speakers of the official language. Thus, when interpreting in court you will not have as much latitude for explaining, clarifying, or

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adapting the message as you would in a business meeting or a diplomatic encounter. The unique demands on the court interpreter will be discussed in more detail in the context of the specific modes of interpreting that are practiced in the judicial setting. In addition to the modes into which interpreting is usually classified, namely, consecutive interpretation, simultaneous interpretation, and sight translation, another classification of interpreting has been established for the judiciary sphere. Hewitt (1995, p. 34), who is writing about the United States, where English is the language of the courts, defines these categories as follows: Proceedings interpretation is for a non-English speaking litigant in order to make the litigant “present” and able to participate effectively during the proceeding. This interpreting function is ordinarily performed in the simultaneous mode. The interpreter’s speech is always in the foreign language, and is not part of the record of the proceedings. Witness interpretation is interpretation during witness testimony for the purpose of presenting evidence to the court. This interpreting function is performed in the consecutive mode; the English language portions of the interpretation are part of the record of the proceeding. A variant of “witness” interpreting is assistance provided by the interpreter during communications between the judge or other English-speaking official on the case and a non-English speaking defendant or civil litigant. Typical examples are communications [which] occur during arraignments, plea or sentencing hearings. Interview interpreting is interpreting to facilitate communication in interview or consultation settings. Interview interpreting may occur in conjunction with court proceedings or before or after court proceedings. Foremost among these are interviews or consultations that take place between attorney and client (sometimes referred to as “defense” interpreting) and between a non-English speaking person and bail screening or probation personnel. Interview interpreting may be performed in either or both the simultaneous and consecutive modes … depending on the circumstances.

Consecutive interpreting Consecutive interpreting is defined as “the process of interpreting after the speaker or signer has completed one or more ideas in the source language and then pauses while the interpreter transmits that information” (Russell and Takeda, 2015, p. 96). It can be further divided into long consecutive, involving several minutes of speech or signing which the interpreter then renders in the target language with the aid of notes; and short consecutive, which encompasses shorter statements and may or may not require the interpreter to take notes for recall. Because the interpreter must wait for the speaker to finish before beginning the interpretation, consecutive interpreting adds considerably to the

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length of an interpreted interaction. It is therefore considered more appropriate for witness testimony than for proceedings, in which all of the speakers share the same language and do not like to stop and wait for the interpretation. Consecutive interpretation is used for proceedings in many countries where a verbatim record is not kept but evidence is summarized. And in Hong Kong, even though a verbatim record is kept and simultaneous interpreting may be provided in many proceedings, consecutive interpreting is much more frequent than in other Common Law jurisdictions. This is because proceedings can take place in either English or Cantonese, and while many legal professionals are bilingual, the majority of laypersons are not fluent in English and require interpreting (Ng, 2009 and 2015). When testimony is given in a language other than the official language of the court, it must be interpreted consecutively: the questions are posed in the official language and then interpreted into the witness’s language; the witness responds in the foreign language, and that response is interpreted back into the language of the court for the official record. When interpreting into the witness’s language, you have an audience of just one person, and can speak sotto voce unless one of the participants has asked to monitor the interpretation. When interpreting the witness’s answers for the record, you must speak loudly enough to be heard by everyone in the courtroom. Much has been written about the so-called “verbatim requirement” that prevails in court interpreting (González et al., 2012; Morris, 1995a and b; Mikkelson, 1998), which has been imposed on interpreters by misguided judges and lawyers. Although the latter often instruct interpreters to “translate word for word” exactly what the witness says, it is clear to anyone who speaks more than one language that such a translation would render the message meaningless in the target language. What is really meant by a “verbatim” interpretation is that every single element of meaning in the source-language message must be accounted for in the target-language version. González et al. (2012) prefer the term conceptual verbatim equivalent, which entails the preservation of the form and content of the linguistic and paralinguistic elements of a discourse, including all of the pauses, hedges, self-corrections, hesitations and emotions as they are conveyed through tone of voice, word choice, and intonation. (p. 15) In the adversarial criminal trial, which as we have seen is often characterized by rapid-fire questioning of witnesses and occasional emotional outbursts, it would be inappropriate to employ the consecutive interpreting strategies developed by conference interpreters, who may eliminate extraneous remarks and fragmentary thoughts to provide a message that is more coherent than the original. This approach may actually make the interpreter’s job somewhat easier, because she is free to concentrate on the speaker’s ideas without having to devote extra memory capacity to the paralinguistic elements of the

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message. A skilled conference interpreter can deal with “speeches of any length” under these circumstances (Jones 2002, p. 5). To ensure that they retain all the elements of meaning mentioned above, many court interpreters practice what is known as sequential consecutive (De Jongh, 1992) or semiconsecutive (Mason, 2008) interpreting of witness testimony. This approach operates at the sentence level instead of working with paragraphs or entire speeches. As mentioned in Chapter 6, it is advisable for interpreters to have a brief pre-session meeting with the witness whose testimony they will be interpreting. In this session, they can become familiar with the way the person speaks, explain the role of the interpreter, and agree on a signal such as a discreet hand gesture that will indicate when the witness needs to pause for the interpreter to intervene (Administrative Office of the Courts, 2008). It is important to point out that the methods recommended by De Jongh and Mason are not without controversy. González et al. (2012) emphasize the distortions that can be introduced in the testimony if the witness is interrupted frequently by the interpreter, citing the findings of researchers such as BerkSeligson (2002) that witnesses who are interrupted every few words by the interpreter are perceived as less credible than those who are allowed to speak at their own pace. In addition, Tipton and Furmanek (2016) emphasize that any pause for interpretation terminates the speaker’s turn, and he may not be given any further opportunity to complete his statement. This means that information that would have been provided in a monolingual interaction is lost because of interpreting. González et al. (2012) caution interpreters to weigh the risk of altering perceptions of the witness against the risk of failing to interpret accurately, and to intervene to break up lengthy witness statements only as a “last resort” (p. 888). It is also worth noting that the semiconsecutive interpreting advocated by Mason (2008) involves the speaker taking the initiative to segment the utterances, rather than relying on the interpreter to decide when to intervene. It thus preserves some degree of speaker autonomy, though it requires more coordination of turn-taking in the interpreter’s pretestimony briefing of the witness, and some witnesses are not amenable to this practice. Fortunately for interpreters, testifying witnesses are rarely given the opportunity to speak at length, because attorneys want to maintain control over their statements. In any case, the ability to coordinate speaker turn-taking is an essential skill that you must master to become a competent court interpreter. Deciding when to intervene in a lengthy statement is a critical judgment based on your assessment of your own memory capacity, the witness’s speaking style, and the impact an interpreter interruption will have on the witness’s perceived credibility. Although it is a good idea to maintain eye contact with the speaker so that signals to pause for interpretation will be seen, witnesses are also encouraged to look directly at the attorney who is questioning them. Moreover, many witnesses are nervous when they are testifying, so they may not remember any signals they agreed on with you in the pre-session briefing. The same is true of attorneys who may be looking at their notes and not

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paying attention to the interpreter. Sometimes the best approach is to simply seize the opportunity when the speaker pauses to catch his breath or organize his thoughts, and begin interpreting right away without waiting for him to explicitly yield the floor. Most speakers and interpreters eventually develop a rhythm, and the turn-taking comes more naturally after a few awkward interruptions. Practicing the management of the flow of communication is an essential part of interpreter training. Because of the risks involved in interpreter interruptions, note-taking is another vital skill that all court interpreters must acquire. In view of the particular demands of courtroom testimony, the note-taking techniques that are taught in interpreting schools where long consecutive is emphasized must be adapted for court interpreting. Many court interpreters make use of the symbols representing key concepts, the notion of verticalization and indentation, the arrows and lines, and other features of consecutive note-taking developed by conference interpreters (Rozan, 1974). Some take notes only on key words, names, and numbers, however, as elaborate note-taking requires losing eye contact with the witness and may prevent them from exerting situational control. It is always advisable to have a notepad and pen available, even if you take few notes. The component skills required for consecutive interpreting can be broken down into three categories: lexical, communication, and retention skills. Lexical skills include familiarity with the legal register of the courtroom (especially the questioning style of trial lawyers), the characteristic registers of lay witnesses and defendants (colloquial, conversational speech, street slang, and the argot of the underworld) and the technical jargon used by expert witnesses (law enforcement personnel, criminalists, medical professionals, and scientists). Communication skills include voice projection and modulation, coordination of turn-taking, and familiarity with courtroom protocol. Retention skills encompass active listening, mnemonic techniques, and note-taking.

Simultaneous interpreting Simultaneous interpreting is the relatively instantaneous transfer from verbal input (spoken or signed) in one language to verbal output in another, though Seeber (2015) points out that there are many permutations in the way this task is performed. The interpreter may be in a booth operating with sophisticated electronic equipment; she may be in a completely different city or country from the speaker, connecting via videoconferencing; or she may be sitting, standing, or even walking next to a listener and whispering the interpretation directly into his ear. The message to be interpreted may be a prepared speech, or it may be completely extemporaneous. In the case of a speech or paper, the interpreter may be given the text in advance, which has its own complications. The common denominator of all these variations is that the process is more or less instantaneous.

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The Nuremberg War Crimes Trials of 1945–46 are generally recognized as the first time electronic equipment was used to make possible simultaneous interpretation of proceedings in multiple languages (Baigorri-Jalón, 2014; Gaiba, 1998). Simultaneous interpreting equipment has become quite sophisticated, and it is now taken for granted that international meetings can be conducted efficiently with multiple working languages. Gaiba emphasizes, however, that nowadays interpreting with such equipment is “seldom used in courts because of its cost to the government,” and that the norm is whispered interpreting or chuchotage. In this method, “interpreters sit next to the people who do not understand the working language and whisper the translation in their ears” (Gaiba 1998, p. 16). In the United States, many interpreters are using wireless equipment to enable them to speak into a microphone at a very low volume and be heard clearly by a defendant wearing earphones, even at a distance of several yards. Although this expedient is not as effective as the soundproof booths and hightechnology equipment used for conference interpreting, it does allow the interpreter to position herself adequately so as to see and hear all participants, protect her voice, and avoid the strain of leaning in to whisper directly in the defendant’s ear (De Jongh, 2012). Sometimes interpreters will combine simultaneous and consecutive interpreting for witness testimony, with questions being interpreted simultaneously for the witness alone to hear, and answers being interpreted consecutively in a loud enough voice for the entire courtroom to hear. Unfortunately, even simultaneous interpreting without equipment, which creates more of a strain for the interpreter, is not the norm in courts everywhere. In the 1990s, several authors reported that summary consecutive interpreting was the norm for interpreted proceedings (De Mas, 1999; Rivezzi, 1999; Tsuda, 1995), and Tipton and Furmanek (2016) state that it is still common in some countries to prohibit interpreters from sitting anywhere near the defendants, thereby precluding simultaneous proceedings interpreting. Though simultaneous interpreting has become more common, in many places it is not yet a prerequisite for employment as a court interpreter despite efforts to encourage it and to improve interpreter training. It is widely agreed that simultaneous interpretation is really the only acceptable mode of interpreting to keep the defendant informed of what is happening in the proceedings, and that court systems should make a greater effort to recruit trained interpreters who can demonstrate proficiency in simultaneous interpretation (Driesen, 1988 and 1989; González et al., 2012; Hewitt, 1995; Nicholson and Martinsen, 1997). Simultaneous interpretation is a complex task that requires extensive training, and even skilled simultaneous interpreters make errors if they work under inadequate conditions. Ideally, the interpreter should see and hear the speaker clearly in order to render an accurate interpretation, and the speaker’s rate of speech must be reasonable (Jones, 2002). Furthermore, frequent breaks should be allowed to prevent interpreter fatigue (González et al., 2012). Studies have shown that even experienced conference interpreters begin to make errors after 20 or 30 minutes of simultaneous interpreting, and it is therefore

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recommended that for proceedings that will last longer than that period, interpreters should work in pairs so that they can relieve each other frequently (Seeber, 2015). Many courts will find this standard impossible to meet, given that there may be few or no qualified interpreters in some language combinations; but as the court interpreting profession becomes more widely recognized, training and working conditions will improve, and the courts will be better able to ensure due process for litigants who do not speak the official language of the legal system. We have already noted that languages are not isomorphic, and therefore interpreters must “repackage” the message to make it understandable in the target language. This task is much more difficult in simultaneous interpretation because of the time factor. When interpreting from a source language that is characterized by a subject-object-verb (SOV) syntax into a target language that follows a subject-verb-object (SVO) order, for example, the interpreter must often wait several seconds to hear the verb before rendering the message in the target language in the appropriate order. This waiting time, termed ear–voice span or décalage (Pöchhacker, 2016), is one of the most important strategies interpreters must learn. It takes a lot of concentration to lag behind the speaker long enough to restructure the message without forgetting any elements of meaning; Jones (2002, p. 68) calls this “cultivating split attention.” He also points out that the degree to which the interpreter lags behind the speaker varies tremendously depending on the syntax of the languages in question and the information available to the interpreter. The exercises listed at the end of this chapter are helpful for enhancing concentration and expanding the ear–voice span. To wait for a key element such as the verb without long pauses, sometimes interpreters use “neutral” or “filler” phrases to “buy time” until they have enough information to complete the thought, while avoiding phrases that commit them grammatically or semantically to a certain meaning. Gaiba (1998, p. 104) describes the strategy devised by the interpreters at Nuremberg for coping with long, convoluted German sentences in which the verb came at the end: [T]hey started the sentence with vague and general phrases and then became more specific once they heard the verb. This allowed them to keep pace with the speaker and to deliver a reasonable, even if not elegant, translation. For example, a judge may say: You have the right to have a misdemeanor or felony charge against you dismissed if you are not tried within the statutory period of time. The interpreter recognizes that the verb “to have” is likely to be an auxiliary in a split verb phrase (“to have [the charge] dismissed”) and holds the initial phrase in short-term memory until she has enough information. The interpreted version, back-translated into English, would be as follows:

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With respect to a misdemeanor or felony charge, if you are not tried within the statutory period of time you have a right to a dismissal of the charge. Another strategy often employed by simultaneous interpreters is anticipation, whereby the interpreter applies her familiarity with the subject matter, patterns of usage in the source language, the speaker’s style, and the context of the speech to predict what the speaker will say without having to wait for a key element such as the verb. This is a risky practice that requires a lot of experience to master, and must be based on a solid foundation of source-language knowledge. In the case of English, in which adjectives tend to precede the noun they are describing, and speakers will often reel off a whole string of adjectives before getting around to the all-important noun, an interpreter may need to restructure the message to put the noun before the adjectives in the target language. It may be possible for her to anticipate the noun based on the initial adjectives and the context of the speech. For example, a prosecutor may address the jury in a closing argument with this statement: Ladies and gentlemen of the jury, I submit to you that this is the most heinous, despicable, outrageous, unconscionable crime ever committed against a child. The interpreter can safely predict the noun after hearing “heinous,” which is a relatively rare adjective that almost always appears in a collocation with “crime.” To be more cautious, however, she might use a more neutral term like “act” instead of “crime.” In languages with radically different syntaxes, interpreters may have to resort to more drastic restructuring. This technique is known as “salami” among conference interpreters, and Jones (2002, pp. 93–94) cites an example of a German-to-English interpretation in which this strategy is applied. The original German statement, translated literally into English, is: We have tried with the photographer, who the man [accusative case], who on the scene of this serious accident was seen, as he to the injured assistance brought, had identified, to get into contact. The interpreter turns the many dependent clauses into short sentences that stand alone: A man was seen at this serious accident. He was helping the injured. He has been identified by a photographer. We have tried to get into contact with the photographer. Thus, to perform simultaneous interpretation efficiently and accurately, you must develop a number of component skills. In addition to the lexical, communication, and retention skills identified as important for consecutive

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interpretation, simultaneous interpreters must possess 1) quick reflexes and mental agility for rapid restructuring of messages, 2) the ability to monitor their own output while also attending carefully to the speaker to make sure they are producing an accurate and intelligible target-language message, and 3) the stamina necessary to cope with the stress inherent in simultaneous interpreting.

Combining simultaneous and consecutive interpreting It was mentioned earlier that interpreters sometimes combine whispered simultaneous interpreting with consecutive interpreting. New developments in technology have prompted interpreters to experiment with the use of digital recorders that enable them to record the source text and play it back immediately after the speaker has finished so that they can provide a simultaneous interpretation of the recording. Thus, the interpreter can hear the source message twice before rendering it, which is thought to increase accuracy. The first use of this technique was reported in the newsletter of the National Association of Judiciary Interpreters and Translators, Proteus (Lombardi, 2003), and then in that of the American Translators Association, The ATA Chronicle (Camayd-Freixas, 2005). These two pioneers used hand-held digital recorders equipped with earbuds. Later, with the advent of digital pens featuring built-in recorders and cameras, interpreters began recording the source message as they took notes (Orlando, 2014 and 2015). One obstacle to using this method in court proceedings is that permission must be obtained from the court and all parties to use any kind of recording device, and that permission is not always granted. It remains to be seen whether this hybrid form of interpreting will come into general use.

Sight translation Sight translation is the oral translation of a written document. It is necessary when standard legal forms must be signed by litigants who do not speak the language of the court, or when documents written in a foreign language are submitted as evidence. Because the interpreter has little time to study the document and prepare to render it orally in the target language, sight translation is not appropriate for lengthy, technical reports or briefs. Particularly in countries where much of the evidence submitted to court is in written form, documents should be translated by professionals who are given adequate time for research and production of a polished translation. In the case of a standard form that an interpreter can become familiar with in advance, or a short document like a birth certificate that is used to prove a defendant’s age, sight translation is an appropriate expedient. González et al. (2012, pp. 893–894) describe the process in this way: Sight translation is analogous to sight reading in music: the interpreter is given a source language document never seen before, and, with minimal

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preparation, the interpreter provides a complete oral translation of the document into the target language. Like accomplished musicians who play an apparently effortless version of a piece they have never laid eyes on, interpreters are actually drawing upon years of training and experience to perform this feat. The end product should be both faithful to the original text and pleasing to the ear (that is, in free-flowing, natural-sounding language). The mental process of sight translation is very similar to that of simultaneous interpretation, except that the source message is in written rather than oral form. Consequently, the same component skills that go into simultaneous interpreting, i.e., quick reflexes and mental agility, plus the ability to monitor your own output while carefully attending to the original, are required for sight translation. In addition, you must be able to grasp the meaning of a written text quickly and then convert a message that was originally intended to be read into one that can be understood in oral form. This may involve breaking up long, convoluted sentences into shorter, more direct statements, as well as using stress and intonation to clarify meaning. You must therefore be familiar with both the oral and written forms of your working languages, which sometimes differ greatly. An added difficulty arises when handwritten documents are presented to the court as evidence, such as when a defendant writes a letter to the judge for the sentencing hearing, or correspondence between two individuals is introduced as evidence in a conspiracy case. Often the writers of such documents are not well-versed in the rules of grammar and punctuation in their native language – indeed, they may be putting in written form a language that does not even have an official orthography, as in the case of indigenous languages that have never been written down – and you may have difficulty deciphering the handwriting and understanding the intended meaning of the document. One strategy for coping with this problem is to read the document out loud before attempting to translate it, as writers are often simply transcribing the way they actually talk in conversation.

Document translation In addition to interpreting and sight translating documents in court, interpreters are sometimes called upon to translate written materials submitted to the court. These may include everything from simple handwritten letters to standard forms to expert witness reports to lengthy court decisions. Court personnel may assume that all interpreters are by definition able to translate competently. In fact, translating and interpreting, while closely related, are different skills that not everyone is capable of mastering equally; in other words, some individuals possessing the prerequisite linguistic skills are better at translating than interpreting, and vice-versa. Unfortunately, however, laypersons are often unaware of this distinction. One of the most salient distinctions

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between the two modes is the “immediacy” of interpreting (Pöchhacker, 2016), contrasted with the longer timeframe in which translation takes place. Translators are usually (though not always) given days or weeks to complete a task, whereas interpreting must take place in real time. According to the Interagency Language Roundtable, “A successful translation is one that conveys the explicit and implicit meaning of the source language into the target language as fully and accurately as possible. From the standpoint of the user, the translation must also meet the prescribed specifications and deadlines” (Interagency Language Roundtable, n.d., n.p.). Traits required for competence as a translator include strong writing ability, analytical and research skills, good judgment in the selection of translation equivalents, attention to detail, patience, and familiarity with computerized translation tools. There are some fundamental differences between written and oral language that are relevant to this discussion: written texts tend to be denser and more precise than oral messages because the writer has the opportunity to plan and revise, and has the knowledge that the reader can return to any sections that might be difficult to process and review them. Speakers are able to convey a great deal of meaning in the paralinguistic elements of their message, such as stress, volume, pauses, and facial expressions; writers must rely heavily on punctuation to clarify the meaning of their texts. In addition, written documents, particularly in the legal field, must meet requirements of form as well as content. For example, there are standard patterns in the opening and closing parts of business letters; and contracts must contain certain formal features to be considered legally valid. All of the above considerations must be taken into account when translating to make sure you fully understand the source text and convey the meaning precisely and completely in the target-language text. Legal translation is a highly specialized field within the translation profession, and a significant portion of the documents involved in court cases require the expertise of trained legal translators who are familiar with different legal systems and the conventions of legal documentation. In many countries, the law requires that all translations be produced by professionals who are legally authorized to use the title sworn translator or public translator. Courts frequently require certified translations of documents that are intended to be introduced into evidence. In the aforementioned countries, the translations produced by these officially authorized translators are deemed certified. In the United States, where translator certification is voluntary and the title is not recognized by law, a certified translation is simply one that is accompanied by a notarized declaration affirming that the translation is accurate and listing the translator’s credentials. The notary merely confirms the identity of the translator whose signature appears on the declaration. Thus it is clear that, even if a legally recognized title is not required to provide legal translation in your country, it is important for you to candidly assess your translation ability and to turn down translation assignments if you feel you cannot perform the task adequately.

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Practical exercises The following exercises are designed to be performed in a single language (e.g., repeating an English speech in English, or reading a Chinese text while listening to a recorded passage in Chinese). Do not attempt to interpret between languages. Try doing these exercises in all of your working languages. Always record your practice sessions and play back what you have done so that you can critique yourself and make improvements. It is also recommended that you have a recorded source to work with so that you can compare your work with the original. Active listening and retention 1

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Obtain an audio or video recording of a presentation on a technical subject, such as instructions for repairing an appliance, or an explanation of a scientific process or concept. Listen to a segment of approximately five minutes without taking any notes, and then try to repeat the main ideas. Gradually increase the length of the segments you try to recall. Repeat the preceding exercise, but as you listen, jot down key words to remind yourself of the main ideas. Then repeat as much as you recall. Gradually increase the length of the segments you try to recall. Compare the results you obtain with and without notes. Often we are unable to retain information because we disagree with the speaker, and we engage in a mental argument rather than listening attentively. This is a particular problem for court interpreters, who must interpret for individuals they may not like, or who they suspect may be lying. To improve your ability to listen attentively without interference from your own bias, obtain a recording of a speech on a controversial topic by a speaker with whom you disagree. After listening to the speech, try to repeat as much as you recall. State the ideas convincingly, as if you believed them. To enhance your awareness of the non-verbal aspects of communication, watch a scene in a recorded movie or television program in which the characters engage in dialogue, with the volume turned down. Try to guess what the conversation is about based only on what you observe. Then view the video with sound to check your assumptions. Ask a friend or fellow student to describe in detail a recent incident, such as a shopping expedition, a trip to a nearby city, or an argument with a friend. Try to repeat the story verbatim. Compare your results with and without notes.

Communication skills 1

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Practice reading aloud a variety of texts, including narrative fiction, dialogue, news reports, and technical manuals. Record yourself and listen critically to your enunciation and intonation. Give a speech on a controversial topic, defending a position with which you actually disagree (it helps to have an audience for this exercise).

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Split attention 1

2

Practice performing two unrelated tasks at the same time, such as repeating (“shadowing”) a recorded speech while writing multiplication tables or a favorite poem. Be sure to record yourself and listen critically to your enunciation and intonation. Gradually increase the speed and complexity of the recorded speeches (these can be obtained from the websites of international organizations, national political bodies, NGOs, TED Talks, etc.). Read aloud a written passage (a magazine or newspaper article, for example), while listening to a recorded speech on an unrelated topic. Afterwards, give the main ideas of both the written passage and the recorded speech.

Restructuring Note: These exercises are intended to enhance your mental agility and linguistic fluency; if you were actually interpreting, you would not alter the register or style the way you will while performing these tasks. 1

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To enhance your linguistic flexibility, read aloud a speech or a passage from a magazine or newspaper, and as you go along try to change the wording without altering the meaning. For example, “the beginning of a new era” can be changed to “the dawn of a new age,” and “the policeman was doubtful of the suspect’s story” could be rephrased as “the version given by the detainee was received with skepticism by the law enforcement officer.” To further enhance your mental agility, repeat the preceding exercise, but with oral input (a recorded speech). The first time you hear the speech, you may not be able to rephrase very much, but as you repeat the exercise with the same speech, you will gradually find new and creative ways to state the same ideas in different words. This is a particularly useful exercise for your second language. Practice paraphrasing both written and oral passages, as above, but make a conscious effort to alter the register, from formal to informal or vice-versa. Paraphrase written and oral passages by stating the ideas more concisely. Repeat the exercise but state the ideas more verbosely.

Anticipation 1

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Have a friend copy a passage from a newspaper or magazine and obliterate words or phrases throughout the text. The obliteration may be random (e.g., every five words), or meaning-based (e.g., all verbs). Then read the redacted passage aloud and try to fill in the missing words based on your knowledge of patterns of usage in the language and the context and subject matter of the passage. Play a recorded speech and click the “pause” button every few seconds; then try to predict what the speaker will say next.

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Interpreting When you make the transition from these exercises to interpreting consecutively or simultaneously between languages, begin with recordings of relatively slow speeches or stories (100 to 120 words per minute) on general topics. Be sure to record your interpretation and listen to it critically, repeating each speech several times until you are satisfied with your interpretation. Gradually increase the speed and complexity of the material you interpret.

Suggested class activities 1 2 3

Stage a mock trial with students playing the parts of defense counsel, defendant, prosecutor, judge, and witness. Name an instance in which consecutive interpreting is more appropriate than simultaneous, and explain why. Find a news account of a criminal case and play the role of the defense counsel giving the final argument before the court, to be interpreted by the class.

Suggestions for further reading The following works are particularly useful for learning the pragmatic aspects of court interpreting: Berk-Seligson, S. (2002). The bilingual courtroom: Court interpreters in the judicial process. Chicago, IL: University of Chicago Press. González, R., Vásquez, V., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. Hale, S. (2004). The discourse of court interpreting: Discourse practices of the law, the witness and the interpreter. Amsterdam and Philadelphia: John Benjamins Publishing Company.

References Administrative Office of the Courts. (2008). Professional standards and ethics for California court interpreters. Court Interpreters Program. San Francisco: Judicial Council of California. Baigorri-Jalón, J. (2014). From Paris to Nuremberg: The birth of conference interpreting. Translated by H. Mikkelson and B. Slaughter Olsen. Amsterdam and New York: John Benjamins Publishing Company. Berk-Seligson, S. (2002). The bilingual courtroom: Court interpreters in the judicial process. Chicago, IL: University of Chicago Press. Camayd-Freixas, E. (2005). A revolution in consecutive interpretation: Digital voice recorder-assisted CI. The ATA Chronicle, 34(3), 40–46. De Jongh, E. (1992). An introduction to court interpreting: Theory and practice. Lanham, MD: University Press of America.

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De Jongh, E. (2012). From the classroom to the courtroom. A guide to interpreting in the U.S. justice system. Amsterdam and Philadelphia: John Benjamins Publishing Company. De Mas, S. (1999). Interpreting in the criminal justice systems of Europe. In L. Katschinka and C. Springer (Eds.), Proceedings of the Fourth International Forum and First European Congress on Court Interpreting and Legal Translation, “Language Is a Human Right” (pp. 12–14).Vienna: Fédération Internationale des Traducteurs. Driesen, C. (1988). The interpreters’ job ‒ A blow-by-blow account. In C. Picken (Ed.), ITI Conference 2, “Interpreters Mean Business” (pp. 105–117). London: Aslib London. Driesen, C. (1989). Reformer l’interprétation judiciaire. Parallèles, Cahiers de l’École de Traduction et d’Interprétation de l’Université de Genève 11, 93–98. Gaiba, F. (1998). The origins of simultaneous interpretation: The Nuremberg trial. Ottawa: University of Ottawa Press. Gile, D. (2009). Basic concepts and models for interpreter and translator training, 2nd ed. Amsterdam and Philadelphia: John Benjamins Publishing Company. González, R., Vásquez, V., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. Hewitt, W. (1995). Court interpretation: Model guides for policy and practice in the state courts. Williamsburg, VA: National Center for State Courts. Interagency Language Roundtable. (n.d.). ILR skill level descriptions for translation performance. Retrieved April 7, 2016 from http://www.govtilr.org/skills/Adop tedILRTranslationGuidelines.htm. Jones, R. (2002). Conference interpreting explained, 2nd ed. Manchester, UK; Northampton, MA: St. Jerome Publishing. Lombardi, J. (2003). DRAC interpreting: Coming soon to a courthouse near you? Proteus, 12(2), 7–9. Mason, M. (2008). Courtroom interpreting. Lanham, Maryland: University Press of America. Mikkelson, H. (1998). Towards a redefinition of the role of the court interpreter. Interpreting: International Journal of Research and Practice in Interpreting, 3(1), 21–45. Morris, R. (1995a). The moral dilemmas of court interpreting. The Translator, 1(1), 25–46. Morris, R. (1995b). Pragmatism, precept and passions: The attitudes of English-language legal systems to non-English speakers. In M. Morris (Ed.), Translation and the law. American Translators Association Scholarly Monograph Series, Volume VIII (pp. 263–279). Amsterdam and Philadelphia: John Benjamins Publishing Company. Ng, E. (2009). The tension between adequacy and acceptability in legal interpreting and translation. In S. Hale, U. Ozolins, and L. Stern (Eds.), The critical link 5: Quality in interpreting – A shared responsibility (pp. 37–54). Amsterdam: John Benjamins. Ng, E. (2015). Teaching and research on legal interpreting: A Hong Kong perspective. In M. Blasco Mayor and M. del Pozo Triviño (Eds.). Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 243–270. Nicholson, N. and Martinsen, B. (1997). Court interpretation in Denmark. In S. Carr, R. Roberts, A. Dufour, and D. Steyn (Eds.), The critical link: Interpreters in the community (pp. 259–270). Amsterdam and Philadelphia: John Benjamins Publishing Company.

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Orlando, M. (2014). A study on the amenability of digital pen technology in a hybrid mode of interpreting: Consec-simul with notes. The International Journal of Translation and Interpreting Research, 6(2), 39–54. Orlando, M. (2015). Digital pen technology and interpreting training, practice and research: Status and trends. In S. Erlich and J. Napier (Eds.), Interpreter education in the digital age: Innovation, access and change (pp. 125–152). Washington, DC: Gallaudet University Press. Pöchhacker, F. (2016). Introducing interpreting studies, 2nd ed. London and New York: Routledge. Rivezzi, G. (1999). The role of the interpreter in the criminal case. In L. Katschinka and C. Springer (Eds.), Proceedings of the Fourth International Forum and First European Congress on Court Interpreting and Legal Translation, “Language Is a Human Right” (pp. 15–17). Vienna: Fédération Internationale des Traducteurs. Rozan, J. (1974). La prise de notes en interprétation consécutive. Geneva: Librairie de l’Université Georg. Russell, D. and Takeda, K. (2015). Consecutive interpreting. In H. Mikkelson and R. Jourdenais (Eds.), The Routledge handbook of interpreting (pp. 96–111). London and New York: Routledge. Seeber, K. (2015). Simultaneous interpreting. In H. Mikkelson and R. Jourdenais (Eds.), The Routledge handbook of interpreting (pp. 79–95). London and New York: Routledge. Tipton, R. and Furmanek, O. (2016). Dialogue interpreting. London and New York: Routledge. Tsuda, M. (1995). Interpreting and translating for Filipino suspects/defendants in Japan: Selected cases and reflections of a participant observer. Philippine Sociological Review, 43(1–4), 139–160.

8

Remote interpreting

Like just about every other aspect of life, the legal realm has been affected by the onward march of technology, particularly in the past two decades. With developments ranging from the intrusion of television cameras and live media coverage of high-profile trials, to the use of sophisticated surveillance technology for criminal investigations, to the introduction of digital evidence and electronic filing, to the use of multimedia presentations in jury trials, to video links between detention facilities and courtrooms, the face of our justice systems has changed dramatically. The impact of communications technology on interpreted interactions is the subject of this chapter. We will first define remote interpreting and explore the different configurations available, and then we will examine the different applications of remote interpreting in law enforcement and court proceedings. After summarizing research findings on the impact on quality, perceptions, and interpreters’ working conditions, the chapter will end with some recommendations for best practice.

Remote interpreting defined Braun (2015, p. 352) defines remote interpreting as the use of communication technologies to gain access to an interpreter in another room, building, town, city or country. In this setting, a telephone line or videoconference link is used to connect the interpreter to the primary participants[.] The participants may not actually be at the same site, but may be in different locations. In fact, a number of different configurations are possible: In the context of court interpreting, examples of these would be a defendant in a videoconference room at a jail, a judge in a courtroom and an interpreter at a central videoconference office operated by the court system (Figure 8.1); an interpreter with the defendant in a videoconference room at a jail, with a judge in a courtroom (Figure 8.2); or an interpreter in the courtroom with the judge and other parties, with the defendant in a videoconference room at a jail (Figure 8.3). Several variations of these configurations could also be

Figure 8.1 Judge in court, interpreter in central office, defendant in jail

Figure 8.2 Judge in court, interpreter at jail with defendant

Figure 8.3 Judge and interpreter in court, defendant in jail

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possible, such as a prosecutor with a potential witness at the prosecutor’s office, connected by videoconference link to a bilingual prosecutor, an interpreter and another witness at the public prosecutor’s office of another country; or a defense counsel and client connected by videoconference link to a defense witness in another state, with an interpreter at a videoconference call center. The first use of remote interpreting was by telephone, launched in Australia in the 1970s and then implemented in the United States and Europe in later decades (Braun, 2015), and telephone interpreting or “over-the-phone” interpreting (OPI) is still in widespread use today. Initially, communication took place on standard telephone lines in the consecutive mode, and eventually dual-receiver telephones were developed to avoid having to pass the receiver back and forth to hear the interpretation (Kelly, 2008). More recently, some venues have adopted two-channel phone technology that make simultaneous interpreting possible (Kelly, 2008), but generally simultaneous interpreting by telephone is not recommended (International Association of Conference Interpreters, 2012). As video technology developed, particularly with Internetbased communications, video remote interpreting began to replace telephone interpreting as the predominant means of connecting interpreters with their clients in a number of settings, including the courts. This served to alleviate the problems that arise when interpreters cannot see the individuals for whom they are interpreting, but as we will see later in this chapter in the discussion of research findings, merely providing a video connection is not a panacea. Technology is changing so rapidly that it would be pointless to specify technical standards in this textbook. Suffice it to say that for optimum quality, interpreters should be able to hear and be heard clearly by all parties. In the case of videoconferencing, screen size, the number of cameras, and connection speed are also of paramount importance. The European Union sponsors a project, AVIDICUS, for the purpose of exploring the use of videoconferencing in criminal proceedings, and recommendations on technology specifications may be found on its website (AVIDICUS, 2016) as well as in Dixon (2011) and González et al. (2012). The more recent the publication, of course, the more relevant the standards are. Because one of the motivating factors in adopting remote interpreting is the desire to save money, institutions in the criminal justice field are not always receptive to expensive solutions that will maximize the quality of the experience. However, as Braun (2014) emphasizes, financial considerations should not override concerns about fairness in judicial decision-making, so a certain level of quality must be a non-negotiable condition for implementing remote interpreting in this sector.

Applications of remote interpreting Many different settings in the legal realm may make use of remote interpreting for reasons of convenience, cost-savings, or security. Telephone interpreting has long been used for public information lines at courthouses and other lawrelated institutions, many of which have subscriptions to over-the-phone

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interpreting services (Kelly, 2008). One of the earliest applications of videoconference interpreting was the establishment of “virtual courts” in the 1990s for the purpose of remotely connecting inmates in detention facilities with courtrooms (Braun, 2015). The specific settings where remote interpreting may be in use are discussed below.

Police and border patrol encounters Law enforcement personnel generally want to interrogate individuals they have arrested to find out what they know and to elicit their version of the events (while observing all the procedural rights mentioned in Chapters 2 and 4; see Chapter 5 for a complete analysis of interpreting police interrogations). When initial arrests are made in the field, obtaining qualified interpreters is especially difficult because of the ad hoc nature of the interactions and logistical challenges. It is not unusual for the police to rely on bystanders or fellow police officers to aid in communication, a practice which is very likely to lead to misunderstandings. When professional interpreting is used, it is more often by telephone than by videoconference, though that may change in the future. In any event, law enforcement encounters in the field are characterized by poor acoustics and the impossibility of advance preparation (Tipton and Furmanek, 2016). Therefore, if you are asked to interpret in such a situation, be prepared to alert the parties to any problems you have in understanding what is said. You may need to ask for repetitions more frequently than in other settings. Be prepared to perform consecutive interpreting, because conditions are rarely adequate for simultaneous interpreting. Not much is known about the impact of interpreting in field interviews because they are so rarely recorded and studied. A little more is known about interrogations conducted in police stations and detention facilities, as reported in the research findings discussed later in this chapter. Unlike field arrests, interviews at police precincts are conducted in a stable environment and there is at least some advance notice of the need for an interpreter. That said, interview rooms are not soundproof and the audibility and visibility (in the case of videoconferencing) are often poor. The stressful conditions noted in Chapter 5 also contribute to the difficulty of interpreting in these situations. In addition, it is hard for the interpreter to establish any rapport with the interviewee if they are not both present in the same room.

Pretrial detention facilities Once someone is in custody, there may be interpreted interactions with jail staff and professionals who provide services such as medical treatment, but they are more akin to the interpreting that takes place in prisons, which will be discussed below. Detainees in jail may also need to make court appearances by videoconferencing, and the interpreting issues that arise are common to all court proceedings; they are discussed in the section on court proceedings

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below. One unique application of remote interpreting in this setting is attorney– client interviews in preparation for trial. As with every other conversation, face-to-face interpreting is almost always preferable, but it is not always feasible with languages of limited diffusion. Lawyers whose regular clientele includes members of a particular linguistic minority should have resources available to them to provide interpreting, but the reality is often otherwise. In any case, if an interpreter has an ongoing professional relationship with a lawyer, it may be easier to interpret for that person remotely due to familiarity with speech patterns; but each new client poses new linguistic and cultural challenges. Another issue that arises in attorney–client communications that must be interpreted remotely is that of confidentiality. We learned in Chapter 6 that all such communication is privileged, and in pretrial detention facilities special provisions are made to protect the privacy of these interactions. If an interpreter is required and cannot be present, it is important to take those needs into account when arranging for telephone or video connections. For example, if you provide telephone or videoconference interpreting from home, you should make sure no friends or family can hear what is being said.

Prisons In Chapter 5 we discussed the fact that eliminating linguistic barriers to communication in prison, where inmates may spend years at a time, is especially critical. In this chapter we are focusing on the specific issues that arise when the interpreting is provided remotely. It has been noted that prisons often make use of bilingual staff or other inmates when interpreting is needed. However, when no interpreter is available or when it is especially important to convey complex messages accurately, as in cases of medical consultations or disciplinary hearings, there is a greater likelihood that outside resources will be utilized. Given the security requirements of penitentiaries, in addition to the logistical and cost considerations that are always cited in the decision to use remote interpreting as a solution, authorities frequently turn to the telephone or videoconferencing. This is particularly true in England and Wales, the Netherlands, Switzerland, California and Oregon in the United States, and Australia, where the profession of community interpreting is more developed than in other countries (Martínez-Gómez, 2014).

Courts When limited language proficient (LLP) inmates in custody need to make court appearances, it is increasingly common for justice systems to resort to remote interpreting. Van der Vlis (2012, p. 13) notes that “E-Justice” is a high priority for EU judicial policy, with videoconferencing being “the central focus” of the effort. He lists some justifications for introducing videoconference interpreting besides the oft-cited reasons of security and cost-effectiveness: minors and other vulnerable witnesses may be protected from direct confrontation with a

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suspect; witnesses located in other states or countries who would otherwise be unavailable can appear via a remote connection, and speedy justice is more likely to be assured due to the reduction in distance-related delays. However, even in courts where interpreters who appear in person are expected to perform in the simultaneous mode, it is likely that consecutive interpreting will be necessary in remote interpreting unless technology has been installed for the specific purpose of enabling simultaneous interpreting. Video remote interpreting has raised concerns about due process, however, as evidenced by the AVIDICUS projects described later in this chapter. According to Braun and Taylor (2012), in many English-speaking countries videoconferencing in the courts dates back to the 1990s, though it did not necessarily involve interpreting. It has also been used extensively in Europe under the E-Justice Action Plan of the European Council. Interpreters are rarely mentioned in the early literature on the subject, but Braun and Taylor cite (with skepticism) a 2009 study conducted by the National Center for State Courts in the United States that focused specifically on videoconference interpreting, describing it as “successful” and asserting that “there is no question about the quality of the service” when credentialed interpreters are used (Green and Romberger, 2009, as cited in Braun and Taylor, 2012, p. 57). In 2007, the Ninth Circuit Court in Florida introduced a central interpreter hub from which staff interpreters served courtrooms all over the vast jurisdiction. Similar efforts took place in Arizona and Wisconsin as well, but the reports on videoconference interpreting in the courts seem to focus only on cost issues without reference to the interpreters’ perspective. According to González et al. (2012), allowing witnesses to testify via videoconferencing raises legal issues that have not yet been resolved. For instance, the advantage for child witnesses cited by van der Vlis (2012) may have implications for the defense’s right to confrontation, for the jury’s evaluation of witness credibility, and for communication styles in questioning. These concerns are exacerbated when an interpreter is involved. González et al. (2012) also point out that expanding the geographic range of witness availability may also require the interpreter to deal with a broader range of regional dialects or variants (consider, for example, the possibility of an expert witness located in New Delhi testifying in the Indian variant of English for a trial in New York; or an expert in Atlanta using the variant of the southern United States testifying at a trial in Sydney). An important consideration in remote interpreting in court is the type of proceeding that is being conducted. While pretrial hearings, which are generally brief and do not involve multiple parties, may be an appropriate application of this mode of interpreting, full-blown trials with an LLP defendant are more problematic. The communication difficulties posed by the lack of a three-dimensional view of the entire courtroom (or any view at all, in the case of telephone interpreting) and the acoustic barriers caused by sometimes unreliable audio connections, added to the interpreter fatigue factor identified in research on remote interpreting (Braun, 2015), are compounded over time

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as proceedings stretch out beyond a couple of hours. Documents that are submitted as evidence or presented to the defendant (change of plea forms, for example) must be handled differently than when all participants are in the same room, and it is even more important than in ordinary proceedings for interpreters to be given documents in advance for adequate preparation. Additionally, the positioning of the interpreter and the LLP individual vis-à-vis the speaker phone or the video camera(s) is a critical issue for ensuring maximum quality. Because of tradition and the ceremonial nature of court proceedings, the courtroom is a very rigid environment in which each participant is assigned a fixed speaking role and a fixed position in the room. When remote interpreting is introduced, considerable adjustments may be required to accommodate all participants, and judges may not be prepared for such modifications in their routine.

Immigration, refugee and asylum proceedings Just like the courts, agencies that administer immigration laws have turned increasingly to remote interpreting as a means of providing language services for the many LLP individuals who participate in their hearings. Unfortunately, it is rare for these institutions to hire professional interpreters, since they must deal with such a wide variety of languages and they often have limited budgets. The equipment used for telephone or videoconferencing is therefore likely to have been installed with administrative considerations in mind rather than focusing on the need for adequate communication through an interpreter. The challenges posed by the lack of physical presence noted above, such as the difficulty of establishing a rapport with the recipient of the interpretation, arise in this setting just as frequently as in the others that have been discussed here. Moreover, the testimony may be emotionally charged because of the traumatic circumstances of many refugees (Pöllabauer, 2015). If you are called to interpret in a proceeding of this type, you may have to be more assertive in conveying your needs to the presiding officer and intervening when you cannot hear or see one of the parties or when you need a repetition.

Research findings Because telephone interpreting preceded videoconference interpreting by several decades, the first research into remote interpreting focused on that mode. A 1992 study (Oviatt and Cohen, 1992, as cited in González et al., 2012, p. 1085) found that interpreter interventions for managing the flow of communication were more common than in face-to-face interpreting, as were unprofessional behaviors such as third-person interpreting and independent conversations. These findings were corroborated in Wadensjö’s (1999) research in the context of police interviews. Lee (2007) interviewed a number of telephone interpreters, who reported unsatisfactory working conditions including low pay. Outside the legal realm and with respect to videoconferencing,

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conference interpreting researchers have conducted several studies that reveal increased fatigue and the resultant errors, as well as disaffection among interpreters located far away from the conference venue (Moser-Mercer, 2003, 2005; Mouzourakis, 1996, 2003, 2006). Studies reported by Braun and Taylor (2012) reveal some of the problems that can arise in law enforcement interviews, though the studies are often based on simulations. Angelelli (2015) did analyze an incident when the U.S. Border Patrol detained and interviewed a suspect with a telephone interpreter mediating their interaction. She found multiple cases of misunderstandings due to poor interpreting, among other factors, which she says “hindered” access to justice for the detainee. Although she notes that conclusions cannot be drawn from a single incident, the results of this study are consistent with anecdotal evidence suggesting that remote interpreting under such circumstances is fraught with difficulties. In addition, Braun (2014) cites a study that compared in-person and remote interpretation in simulated police interviews. The original hypothesis that remote interpreting would be more problematic in terms of errors and turn-taking than face-toface interpreting was confirmed, and repetitions of the simulation after the interpreters had gained some experience and received training resulted in some improvement. It can be concluded, then, that training – both for interpreters and for the police – is essential if police interviews are to be conducted via remote interpreting. In the context of court proceedings, the AVIDICUS project is the most comprehensive analysis of videoconference interpreting ever carried out. Spanning the years from 2008 to 2013, this series of research studies examined various aspects of videoconference interpreting in the courts of several European countries. The first phase, AVIDICUS 1, included surveys among stakeholders and experimental studies, concluding with recommendations for best practice. AVIDICUS 2 replicated the first experiments with the addition of a pilot training program for interpreters and better equipment, followed by an analysis of real-life interpreted proceedings using videoconferencing (Braun, 2015). During the same period, similar research was being conducted independently by Verdier and Licoppe (2011) in the courts of France, Napier (2012) in Australia with respect to sign language interpreting, and Fowler (2013) in the magistrates’ courts of England. All of these studies revealed important findings in terms of barriers to effective interpreter-mediated proceedings and best practices, which are described below.

Recommendations for best practice The recommendations that follow are taken from the works cited throughout this chapter (Kelly, 2008 in relation to telephone interpreting; and in relation to videoconference interpreting, Braun and Taylor, 2012; González et al., 2012; Napier, 2012; van Rotterdam and van den Hoogen, 2012).

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Equipment Telephone interpreters should have a high-quality headset with a mute button and dual volume control. They should use landlines only and should not have call-waiting or other beeping features that might interrupt the audio. In law enforcement and correctional facilities, interactions should take place in as quiet an environment as possible, and recipients of the interpreting should have individual headsets and microphones; dual headset phones should be provided rather than relying on speaker phones or simply passing the handset of a single telephone from person to person. In courtrooms, a microphone should be placed in front of every potential speaker (counsel, witnesses, judge, court reporter and court clerk). Sound checks should be conducted before the proceedings to make sure audio connections are working, and technical support should be readily available in case of equipment failures during the proceedings. Interpreters should have the technology to enable them to receive documents ahead of time for adequate case preparation. All of the conditions mentioned in the preceding paragraph should be met in the case of videoconferencing as well. Equipment should be positioned to ensure that the interpreter can see and hear all parties, with multiple camera angles to eliminate blind spots. Microphones should be placed throughout the courtroom so that court personnel and parties can all be heard clearly. Lighting should be sufficient to avoid shadows or reflections that make it difficult to perceive facial expressions, and contrast and color should ensure as realistic a picture as possible for the remote viewers. Screens should be placed in such a way that all participants can see them easily without shifting positions or altering their posture. Bandwidth should be broad enough to ensure proper audio and visual synchronicity without distortions, especially in the case of sign language interpreting. Technical standards for videoconferencing equipment have been specified in detail in the AVIDICUS projects (Braun and Taylor, 2012; Braun, 2015). As with telephone interpreting, technical assistance should be available at a moment’s notice.

Court and law enforcement personnel All personnel likely to be involved in interpreted interviews or proceedings should receive training in the appropriate use of remote interpreting and the risks inherent in the misuse of this mode. Specifically, they must understand the fatigue that interpreters experience with lengthy interactions, and should be cautioned not to use remote interpreting in any event that is likely to last more than 30 minutes. The training should include instruction in the use of the equipment provided for remote interpreting, and should stress the importance of giving interpreters documentation in advance. Furthermore, personnel should be advised to monitor the flow of communication and be prepared for the possibility of equipment failures. A standard set of instructions should be developed to be given to all participants in interactions using remote

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interpreting, including admonitions to speak one at a time, limit extraneous noises like shuffling papers, speak clearly and directly into the microphone, keep utterances short or pause frequently in long statements to allow for consecutive interpreting, and be patient with interpreter requests for repetition. Reading aloud from documents should be discouraged, but if it is necessary it should be done slowly and clearly. In the case of telephone interpreting, participants should also be reminded to identify themselves each time they speak and describe any physical movements they make such as gesturing, approaching the bench or pointing to objects or parts of the room.

Interpreters It is clear from all the information presented in this chapter that remote interpreting requires special training beyond what interpreters normally receive. If you provide remote interpreting from an office or your home, you should make sure your work station and your equipment are appropriate to ensure good acoustics, privacy and proper ergonomic conditions. You should be prepared to intervene as necessary when you cannot hear or see or when an equipment failure occurs. Many interpreters are resistant to performing remote interpreting in light of all the extra challenges it poses, but it is rapidly becoming a fact of life in the legal arena and hence part of the basic interpreter skill set.

Suggestions for further reading The works listed here cover remote interpreting (by telephone or videoconferencing) in depth and offer valuable advice for best practices not only for interpreters, but also for administrators in legal settings and professionals who work with interpreters. Several of them also feature diagrammatic and photographic views of the different scenarios or configurations that may occur. Braun, S. (2015). Remote interpreting. In H. Mikkelson and R. Jourdenais (Eds.), The Routledge handbook of interpreting (pp. 352–367). London and New York: Routledge. Braun, S. and Taylor, J. (Eds.) (2012). Videoconference and remote interpreting in legal proceedings. Cambridge and Antwerp: Intersentia. González, R., Vásquez, V., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. Kelly, N. (2008). Telephone interpreting: A comprehensive guide to the profession. Clevedon: Multilingual Matters. Verdier, M. and Licoppe, C. (2011). Videoconference in French courtrooms: Its consequences on judicial settings. International Journal of Law, Language & Discourse, 1(3), 1–28.

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References Angelelli, C. (2015). Justice for all? Issues faced by linguistic minorities and border patrol agents during interpreted arraignment interviews. In M. Blasco Mayor and M. del Pozo Triviño (Eds.), Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 181–205. AVIDICUS. (2016). Home page. Retrieved February 2, 2016 from http://www.video conference-interpreting.net/. Braun, S. (2014). Comparing traditional and remote interpreting in police settings: Quality and impact factors. In M. Viezzi and C. Falbo (Eds.), Traduzione e interpretazione per la società e le istituzioni (pp. 161–176). Trieste: Edizioni Università di Trieste. Braun, S. (2015). Remote interpreting. In H. Mikkelson and R. Jourdenais (Eds.), The Routledge handbook of interpreting (pp. 352–367). London and New York: Routledge. Braun, S. and Taylor, J. (2012). Video-mediated interpreting: An overview of current practice and research. In S. Braun and J. Taylor (Eds.), Videoconference and remote interpreting in legal proceedings (pp. 33–68). Cambridge and Antwerp: Intersentia. Dixon, H. (2011). The development of a high-technology courtroom. Future trends in state courts: Special focus on access to justice [Special issue], 28–32. Retrieved June 29, 2016 from http://www.ncsc.org/sitecore/content/microsites/future-trends-2011/ home/Technology/1-4-Evolution-of-high-tech-courtroom.aspx. Fowler, Y. (2013). Non-English-speaking defendants in the magistrates court: A comparative study of face-to-face and prison video link hearings in England. Unpublished doctoral dissertation, Aston University. Retrieved January 13, 2016 from http://eprints.aston.ac.uk/19442/1/Studentthesis-2013.pdf González, R., Vásquez, V., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. International Association of Conference Interpreters. (2012). Telephone interpreting. Retrieved February 2, 2016 from http://aiic.net/page/5921/telephone-interpreting/lang/1. Kelly, N. (2008). Telephone interpreting: A comprehensive guide to the profession. Clevedon: Multilingual Matters. Lee, J. (2007). Telephone interpreting – seen from the interpreters’ perspective. Interpreting: International Journal of Research and Practice in Interpreting, 2(2), 231–252. Martínez-Gómez, A. (2014). Interpreting in prison settings. Interpreting: International Journal of Research and Practice in Interpreting, 16(2), 233–259. Moser-Mercer, B. (2003). Remote interpreting: Assessment of human factors and performance parameters. Communicate! Summer. Retrieved March 23, 2016 from http://aiic.net/ViewPage.cfm?page_id=1125 Moser-Mercer, B. (2005). Remote interpreting: Issues of multi-sensory integration in a multilingual task. Meta, 50(2), 727–738. Mouzourakis, P. (1996). Videoconferencing: Techniques and challenges. Interpreting: International Journal of Research and Practice in Interpreting, 1(1), 21–38. Mouzourakis, P. (2003). That feeling of being there: Vision and presence in remote interpreting. Communicate!, Summer. Retrieved March 23, 2016 from http://www. aiic.net/ViewPage.cfm/article911.htm. Mouzourakis, P. (2006). Remote interpreting: A technical perspective on recent experiments. Interpreting: International Journal of Research and Practice in Interpreting, 8(1), 45–66.

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Napier, J. (2012). Here or there? An assessment of video remote signed language interpreter-mediated interaction in court. In S. Braun and J. Taylor (Eds.), Videoconference and remote interpreting in legal proceedings (pp. 167–214). Cambridge and Antwerp: Intersentia. Pöllabauer, S. (2015). Interpreting in asylum proceedings. In H. Mikkelson and R. Jourdenais (Eds.), The Routledge handbook of interpreting (pp. 202–216). London and New York: Routledge. Tipton, R. and Furmanek, O. (2016). Dialogue interpreting. London and New York: Routledge. van der Vlis, E. (2012). Videoconferencing in criminal proceedings. In S. Braun and J. Taylor (Eds.), Videoconference and remote interpreting in legal proceedings (pp. 13–31). Cambridge and Antwerp: Intersentia. van Rotterdam, P. and van den Hoogen, P. (2012). True-to-life requirements for using videoconferencing in legal proceedings. In S. Braun and J. Taylor (Eds.), Videoconference and remote interpreting in legal proceedings (pp. 215–226). Cambridge and Antwerp: Intersentia. Verdier, M. and Licoppe, C. (2011). Videoconference in French courtrooms: Its consequences on judicial settings. International Journal of Law, Language & Discourse, 1(3), 1–28. Wadensjö, C. (1999). Telephone interpreting & the synchronisation of talk in social interaction. The Translator, 5(2), 247–264.

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Specialized topics, resources and references

In Chapter 7 we examined the interpreting process and the types of linguistic and communicative competence that court interpreters must develop. Now we will look at the content knowledge that is required for court interpreting. We have already seen that interpreters need to have some understanding of criminal and civil procedure in the courts where they work and in the countries where their languages are spoken. They must also be familiar with the evidence that is presented in typical criminal and civil cases, and the associated terminology. In this chapter we will review the most common criminal offenses and civil-law issues that you are likely to encounter in your work as a court interpreter. The chapter concludes with recommendations for resources that are available to help you research the subject matter and terminology related to these topics.

Criminal cases Driving offenses: Even the most law-abiding citizen will at some time come into contact with law enforcement authorities in connection with a traffic violation. These offenses are considered the least serious, and are often dealt with in a separate court. Nonetheless, the evidence presented in traffic cases can be quite technical, especially with respect to accidents and vehicle maintenance. For instance, a truck driver may receive a citation for not having the required safety equipment, or a police officer in a reckless driving case may present testimony about road conditions and signage. You must therefore know the correct terms for all parts of passenger and freight vehicles, road signs, features of public roadways (e.g., median strip, fast lane, overpass, double yellow line), and driving terms (e.g., skid, swerve, pull over). Terms used by police officers in describing arrest procedures are also likely to come up in testimony. Specific terms related to driving while intoxicated or driving under the influence of alcohol or drugs, an offense which is being enforced with increasing vigor in many countries, are also important. These include the symptoms of intoxication and the tests that are administered to measure blood alcohol content. Because numbers are notoriously difficult to interpret accurately, you should prepare by learning the numbers of frequently violated code sections. Obtaining copies of vehicle or traffic codes in all of your

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working languages will help you not only with code sections, but also with terminology. Controlled substances: Drug abuse is a constant problem around the world, and you must be prepared to deal with evidence related to different illegal substances, how they are packaged, transported, sold, and consumed. You should be familiar with both the scientific names of the drugs or narcotics and the names they are given on the street. Studying the laws governing controlled substances (usually the penal code or the health and safety code) will give you the scientific names and the appropriate terms for illegal drug paraphernalia. The drug subculture has a very elaborate language featuring many euphemisms and slang terms that will be repeated in testimony or heard in undercover recordings. Although the scientific names for drugs do not change over time, slang terms are very fluid, which means you should constantly update your knowledge of them. Law enforcement agents also have their own jargon for undercover operations (stings and controlled buys, for example) and arrests (raids and busts, for example). You may also encounter technical testimony about hazardous materials, equipment, and chemicals found in drug laboratories. Money laundering is a drug-related offense (though it could be related to any organized crime) that is international in scope and often requires cooperation among different countries. It involves channeling the large amounts of cash generated by illicit transactions into legitimate businesses in order to conceal criminal activities from the authorities. Testimony in money laundering cases will include financial, banking, and business terms. Property crimes: Testimony in these cases can be very challenging for interpreters because of the wide variety of personal property that may be stolen, including electronic equipment, clothing, jewelry, furniture, appliances, and vehicles, as well as any item that could be taken from a commercial establishment (toys, lingerie, snacks – the possibilities are endless). Professional shoplifters and pickpockets use certain paraphernalia to aid them in their crimes, and burglars carry certain tools for breaking into homes and businesses. Testimony about burglary cases will usually include terms related to locks and security devices, as well as architectural terms (e.g., window sill, doorframe, eaves). In the case of auto burglary (not to be confused with car theft), auto parts will be mentioned frequently. Burglary itself is a confusing concept, as it is commonly assumed to include theft, but technically it means entering a premises illegally with intent to commit any crime. In some countries there is no such thing as burglary, but similar acts will be charged as aggravated theft or unlawful intrusion in a home or business. Burglary and other types of theft are surreptitious, whereas robbery entails a physical confrontation between the perpetrator and the victim. Assault: Most people think of assault as a physical attack on the victim, but it could be any sort of intimidating, offensive, or unwanted contact or the threat of such contact, and it does not necessarily mean that the victim is injured. If a weapon is used or the victim is in fact injured, the charges may be assault

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with a deadly weapon, assault and battery, or assault with intent to cause great bodily injury or grievous bodily harm. Sexual assault refers to unwanted touching of certain parts of the body. Weapons: Criminal activities often involve the use of firearms or other weapons. Certain weapons seem to be preferred in some cultures, and firearms are much more prevalent in some countries than others, so you should become familiar with the weapons most frequently used in the country where you work. Testimony about firearms will include not only the names of different guns (pistol, revolver, rifle), but also the way the gun is fired, how it may malfunction, and how it may be modified (such as converting a semiautomatic weapon to full automatic by filing down the sear pin). Different types of ammunition will be mentioned, and there may be evidence about ballistics tests to determine the identity of weapons or the origin of casings or slugs found at the crime scene. Testimony about knives and other bladed or edged weapons will include the shape, size and color of the handle and blade, as well as specialized features such as switchblades. If wounds are inflicted, there will be forensic evidence involving angles of incidence, blood spatter patterns, entry and exit wounds, powder burns, slash marks, and the like. Sex offenses: These cases are particularly stressful to interpret, because explicit testimony must be presented regarding the acts that were performed. Reliving the experience can be traumatic for the victim, and the interpreter must take special care not to become emotionally involved (see Chapter 10 for information on secondary or vicarious trauma). Reading penal code sections related to sexual assault, rape (including spousal and acquaintance rape or “date rape”), child molesting, non-consensual sodomy, incest, and other sex offenses will help you research related terminology in your working languages. It is also important to be familiar with the slang terms people use for body parts and sexual practices, as unsophisticated witnesses (especially children) may not know the appropriate clinical terms, or they may be asked to recount a conversation in which such language was used. Expert witness testimony in sex offense cases will deal with collecting evidence at the crime scene, giving the victim a medical exam, and testing substances such as bodily fluids, hair, and fibers. DNA profiling is commonly used to identify perpetrators, and testimony about such evidence can be quite technical. Domestic violence: Legal systems around the world are finally recognizing that violence that occurs in the home is not a private matter and should be prosecuted in the same way as any other type of assault. Accordingly, laws have been rewritten to include violent acts between spouses or domestic partners, as well as those inflicted upon children and other vulnerable individuals such as the mentally ill and the elderly. Law enforcement officials have been trained to handle these cases appropriately, and many police departments have special units to investigate them. Professionals such as physicians, teachers, counselors and clergy who may come into contact with victims of domestic violence, child abuse, or elder abuse have also been sensitized to the issue and are required by law in many countries to report suspected cases (they are

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deemed mandated reporters, and this category may include interpreters). Hotlines, shelters, and counseling centers have been established to provide support for victims, and publicity campaigns have been launched to raise public awareness. Interpreting in these matters can be just as difficult as in sex offenses, especially when children or persons with disabilities are involved. Terms that may come up in domestic violence cases include restraining orders, no contact orders, child custody, foster care, guardianships, “battered wife” syndrome, and post-traumatic stress syndrome. Homicide: The laws relating to the taking of another’s life are necessarily complex because of the issues of intent, motive, premeditation and methods that must be resolved. Terms like murder, involuntary and voluntary manslaughter, excusable and justifiable homicide, malice aforethought and lying in wait must be translated carefully, since nuances in meaning can have legal implications. Homicide cases involve testimony about autopsies, crime scene analysis, tissue samples, DNA profiling, weapons of different kinds and many more topics, depending on the facts of the individual case. In the few countries that impose the death penalty, there may be testimony to provide mitigating evidence such as childhood trauma, mental illness, or substance abuse. Character witnesses may also testify for or against the offender, and at sentencing there may be statements by the victim’s family. White collar and cyber crimes: These crimes, which are generally non-violent offenses, tend to be financial in nature. In addition to money laundering, mentioned above, they include embezzlement, insider trading on the stock market, mail fraud, forgery, larceny, identity theft, phishing, and hacking. In some countries, criminal charges may also be filed for non-violent acts that are not motivated by financial gain, such as sexual harassment, racial discrimination, bullying, or hate speech. Testimony in these cases can be very technical, dealing with complex regulations or sophisticated financial transactions. Criminalistic evidence: This kind of evidence can be presented in cases of any of the types mentioned above, as criminalists (not to be confused with criminologists, who specialize in the sociology of criminal behavior) are scientists who apply their knowledge to any sort of criminal evidence. They usually work at crime labs, and specialize in fields such as accident reconstruction, ballistics, explosives, narcotics, fibers, serology (the study of bodily fluids, including DNA profiling), chemistry, or fingerprint analysis. A criminalist could testify about whether saliva found on a cigarette butt matches that of the defendant; whether the blood spatters found at the murder scene are consistent with eye-witness testimony about a physical altercation; whether the remnants of a match found at an arson site correspond to the matchbook found in the pocket of the defendant; or whether paint scrapings and tire tracks at an accident scene match those of a suspect vehicle. Interpreting such expert witness testimony for the defendant is challenging, and the best way to prepare for it is to request a copy of the criminalist’s report before testimony begins.

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Civil cases Divorce: Perhaps the most common type of civil case in which interpreters become involved is divorce. The laws governing divorce vary a great deal from one country to another, which means that the kinds of evidence produced vary as well. There may be testimony about adultery or abuse, about marital and domestic relations, or about distribution of assets and other financial matters. If there are children, matters of custody and visitation will be discussed. Evidence may be presented concerning childrearing practices, religious beliefs, and household expenses for purposes of determining spousal support or alimony and child support payments. Wills and probate: Wills are complicated documents that cannot be translated without extensive preparation. If you are asked to interpret in a law office for someone who is drawing up a will, or for the reading of the will in the presence of the heirs, you should obtain the relevant documents ahead of time to prepare. The terminology will most likely involve real and personal property corresponding to the estate, bequests and charitable contributions, trusts, executors and administrators, types of heirs and beneficiaries, taxes, and standard legal phrases that appear in notarized documents (e.g., in witness whereof, hereby attest). If a will is being litigated in court for some reason, there may be testimony about family relationships and the mental and physical state of the testator or decedent. It is helpful to study sections of the civil code regarding wills and succession to prepare for these cases. Adoption: Evidence in these cases will focus on the prospective parents’ financial status and domestic relations, as well as legal regulations governing adoption in the country in question. Issues such as parental rights and obligations, birth and death records, religious practices, and powers of attorney may arise as well. Landlord–tenant relations: The most common type of case heard in court in this category is eviction, in which a property owner or lessor seeks the removal of a renter or lessee, usually for non-payment of rent. There will be testimony about the terms of the rental agreement or lease, the condition of the dwelling (including plumbing, wiring, heating, leaky roofs, faulty appliances, etc.), and tenant behavior (such as noise, cleanliness, number of residents, relations with neighbors, etc.). Sometimes a government agency will hold a hearing based on complaints about substandard housing or racial and ethnic discrimination. Labor relations: Civil litigation in the area of labor law may deal with union organizing activities, labor disputes, industrial accidents and job safety, unemployment insurance, sexual harassment, or racial and ethnic discrimination. To prepare for interpreting in such cases, you should talk to the parties and find out what the issues are so that you can obtain copies of contracts or regulations. Often there is very detailed testimony about the work itself, including machinery, materials, procedures, safety equipment, and the command structure of the workplace. A visit to the job site, if possible, is helpful for preparation.

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Property law: Evidence presented in these cases will include title deeds, loan contracts, mortgages, foreclosure, escrow, joint tenancy and other legal matters that require technical expertise to translate. Testimony may cover the terms of contracts and agreements, surveying boundaries, geographic features, environmental regulations, financial transactions, taxes, sewage and drainage, architecture and construction, and agricultural practices. Business law: In addition to the labor and property law cases mentioned above, other issues that may arise in litigation between businesses are breach of contract, partnerships, insurance, investment, financial transactions (e.g., loans, bank accounts, stock offers, bond issues, dividends), accounting and bookkeeping, bankruptcy, product liability, bidding specifications, copyright and trademark violations, industrial secrets, and unfair competition. Clearly, business law is an extremely diverse and complex field, requiring a great deal of specialized knowledge on the part of translators and interpreters.

Administrative hearings Another venue of the legal realm where interpreters frequently work is the administrative hearings conducted by government agencies. These proceedings may or may not be covered by the laws governing language access in a given country, beyond general precepts requiring provisions to be made for limited language proficient (LLP) individuals such as Title VI of the Civil Rights Act in the United States (González et al., 2012). They are considered quasi-legal proceedings in which administrative officers take testimony and issue decisions, often without the involvement of lawyers. Accordingly, the atmosphere is less formal than the courtroom environment, even though the stakes may be just as high in some cases. At issue are public benefits, labor relations, discrimination, harassment, driving privileges and other matters that do not fall within the sphere of the courts but are nonetheless of major importance to the participants. Each agency has its own procedures, terminology and jargon, depending on its area of specialization, so the interpreter needs to become familiar with the agency itself in order to prepare for a hearing. Most of them have websites with plenty of information available to the public about what they do, since they are public entities that are accountable to taxpayers, so if you are asked to interpret at one of these proceedings that is the best place to start. It might also be useful to go to a local office of the agency and collect brochures and standard forms to make sure you are familiar with the concepts and terminology that are likely to come up in the hearing. It is important to remember that the officials involved in administrative hearings may not have experience of working with professional interpreters, which means that you may have to be more assertive about ensuring proper working conditions.

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Resources for research and preparation The novice interpreter who encounters an unknown term is likely to turn first to the most obvious resource, the bilingual dictionary (whether online or in print). A few unpleasant experiences are usually enough to convince the interpreter that this is not always the wisest course of action. The meaning of a word may shift dramatically from one context to another, so interpreters cannot necessarily rely on dictionary definitions to help them solve translation problems. Bilingual dictionaries do have their place in the interpreter’s library, of course, but they should be supplemented with more specialized dictionaries and reference works, as well as non-traditional sources of information. Gile (2009, p. 131) identifies two different types of resources that interpreters and translators can consult: documents (hard copy or electronic) and human sources. All resources should be used with caution, especially with terms and fields that are completely new to you. The proverbial Google search can yield a treasure trove of terminology resources, but not all are trustworthy. The more times you come across a term in different resources, the more reliable you can consider the term to be. Conversely, if you find a term in just one source and cannot verify it by cross-checking, you should be cautious about using it. Listed below are resources that you will find helpful in your work as a court interpreter: The interpreter’s basic library There are certain reference works that should be present in every court interpreter’s personal library or readily available online for ongoing research: 1 2 3 4 5 6 7

8

A general monolingual dictionary in each of the interpreter’s working languages General bilingual dictionaries in each of the interpreter’s language combinations Monolingual legal dictionaries in each of the interpreter’s working languages Bilingual legal dictionaries in each of the interpreter’s language combinations Specialized bilingual or multilingual glossaries and language-specific web pages devoted to topics of relevance to court cases Legal texts such as civil and penal codes in each of the interpreter’s working languages Language references such as a thesaurus, style manual, grammar book, and dictionaries of synonyms and antonyms, phrases and collocations, slang, proverbs, and regionalisms in each of the interpreter’s working languages Periodicals of general interest such as newspapers and magazines in each of the interpreter’s working languages.

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When considering the purchase of a dictionary or other reference work, often no small investment, you should evaluate the following features: date of publication, country of origin, identity and credentials of author(s), reputation of publishing house, quality of binding and paper, and the presence or absence of usage notes regarding grammar, collocations, register, field of knowledge, and regionalisms. In the case of specialized dictionaries, it is also a good idea to look for “fillers,” that is, general terms that could be found in any dictionary and are added simply to bulk up the volume. To test the reliability of a dictionary, look up a term you already know that is problematic and see how it is dealt with in this work. The same holds true of electronic resources. Always read the “about us” page of a website to find out who created it, his or her credentials and expertise, and the creator’s country of origin. Also check to see how frequently the site is updated. Many novice interpreters wonder whether it is appropriate to bring dictionaries and glossaries, whether hard copy or electronic, to their interpreting assignments. They fear that their clients may doubt their competence if they are seen looking up terms. Just as legal professionals consult references in the courtroom (appellate reports, bench books, and codes, for example), interpreters need to bring the tools of their trade with them to the job. If you know in advance that a specific topic such as fingerprints or drug slang will be covered, you can come to the assignment prepared with specialized glossaries or notes from your research. It is always a good idea to have a comprehensive bilingual dictionary available, in case an unknown term comes up unexpectedly or you suddenly have a memory lapse, something that afflicts all interpreters at one time or another. Additional references that can be purchased or consulted online or in a public or university library are: 1

2 3

4

5 6

Monolingual dictionaries or websites devoted to topics such as medicine, chemistry, business, accounting, finance, automotive terms, tools, pharmaceutical products, illegal drugs, and weapons. Bilingual printed or electronic dictionaries or glossaries on the topics listed above. Monolingual dictionaries, textbooks and websites on specialized areas of the law such as contracts, property law, family law, probate, and labor relations. Visual dictionaries such as the Oxford-Duden series or the What’s What series, which are published in many different languages. Image and video searches on the Internet are also very useful. Textbooks for students of law, medicine, chemistry, law enforcement, accounting, or business. Publications and websites of government agencies wishing to inform the public about their programs or about laws and regulations governing areas such as motor vehicles, labor relations, employment, job safety, pensions, housing, family matters, education, social welfare, health care,

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Specialized topics disability, and environmental law (in some countries these materials may be available in several languages). Specialized printed or online periodicals such as journals and magazines targeted at professionals in the fields of law, medicine, and law enforcement.

Other resources that can be useful for researching terminology, especially newly coined terms that have not yet made it into established publications, are newspaper and magazine advertisements, billboards, catalogues, and phone directories. To keep up with the latest usage, you should also try to listen to radio programming and watch television shows and movies in all of your working languages. This is more feasible than ever, since many radio stations can be heard on the Internet and television programs and movies can be streamed. Internet searches The advent of the Internet is a boon to translators and interpreters, who no longer have to travel to other countries or wait for publications to arrive in the mail in their quest for authentic resources. It would be pointless to try to list websites of interest to court interpreters, since there are so many and they are changing on a daily basis, but some general categories can be identified: 1 Terminology databases. Many international organizations maintain databases for their translation and interpretation staffs, and the public can gain access to them. Note that some of these organizations have their own internal usage (“UN-ese,” for example), so terms and phrases found in these databases must be cross-checked with others. 2 Corpora. A corpus (plural corpora) is a large collection of written or spoken texts. In recent decades, translation and interpreting scholars have investigated the use of monolingual, bilingual and multilingual corpora for obtaining authentic samples of language use for a variety of purposes (Baker, 1995; Bowker, 2000). General corpora such as the Corpus of Contemporary American English (http://corpus.byu.edu/coca/) and the British National Corpus (http://www.natcorp.ox.ac.uk/) are very useful for researching non-technical language. For court interpreters, corpora of legal speech and documents can be mined for collocations and terms as they are used by legal professionals and legislators in real life (an example of a legal corpus is the Bononia Legal Corpus, maintained by the University of Bologna, available at http://corpora.dslo.unibo.it/bolc_eng. html). 3 Websites of international organizations such as the United Nations, the International Court of Justice, the International Labor Organization, and the World Health Organization, where speeches and reports can be downloaded. The European Union’s Eur-Lex site allows side-by-side comparisons of European legislation in different languages, which can be helpful for term searches.

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4 Websites of private international organizations such as Amnesty International, Greenpeace, and Human Rights Watch, which post reports and news items (sometimes in multiple languages). 5 National institutions such as courts, legislatures, justice ministries and law enforcement agencies, which publish laws and regulations, information to educate the public, and glossaries. 6 Commercial entities that deal with legal matters, such as private law firms and popular crime websites, which post legal documents and information about prominent lawsuits and trials. Some lawyers write blogs with information about topics of interest to court interpreters. 7 Bookstores and publishers, from which books and other materials can be purchased online. 8 Universities and their libraries. Some professors’ and students’ homepages and blogs have valuable links to other Internet sites in their area of expertise. 9 Public libraries, both national and local, such as the Library of Congress and the New York Public Library. 10 Professional associations of interpreters, translators, linguists, and others. 11 Chat rooms and electronic bulletin boards or mailing lists help colleagues and speakers of a given language stay in contact through email. Translators and interpreters often post queries of the “how do you say …?” or “what does … mean?” sort on these lists and receive quick answers (not all are reliable, however). It is important to learn how to conduct Internet searches wisely to avoid sources that are not trustworthy. Rather than judging by the raw number of “hits” your search yields for a given term, pay attention to the Uniform Resource Locator (URL) or web address of the sites, especially the country domains. For example, if you are looking for an English term and all the “hits” in your search end with the country suffixes of China or Russia, the term you find is probably a translation. If you are checking to see if a Spanish term is correct and your search yields mostly sites ending in .gov, they are very likely web pages of U.S. Government entities that have been translated into Spanish. Only if you find suffixes corresponding to Spanish-speaking countries can you trust that the term is valid. Similarly, if you want to know the meaning of a term used in the Canadian legal system, you should limit your search to sites in Canada, using the suffix .ca (thus, you would enter the term bail followed by site:ca in your search window). Country domain suffixes can be found easily on the Internet. Other domain suffixes provide valuable information as well. For example, a site ending in .edu is an educational institution and is often more likely to contain dependable information than one ending in .com, depending on the subject matter, of course. You can also limit your search to a specific language or use the + and – symbols to exclude or include certain terms. For more information about finding terms on the Internet, consult the “advanced search” features of your search engine.

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Human resources The above lists of references include works that ideally should be available to every interpreter, but in fact there is a paucity of reference material in some languages of limited diffusion. Indeed, some languages are not written at all, and it is virtually impossible to find reference materials in them. An alternative resource that should not be overlooked, even in the case of major languages, is human experts: bilingual or monolingual professionals, elders, missionaries, and scholars, regardless of what country they live in, may be of assistance in your terminology research (though it may be time-consuming and expensive to contact them). Even the defendant or witness for whom you are interpreting, or his friends or relatives, may be consulted about the meaning or appropriate translation of a term, provided it is done with the knowledge of all the parties in the case. As with the case of printed resources, information obtained from human resources should be cross-checked for verification. Your interpreter colleagues are also excellent resources; one of the many benefits of team interpreting is that if you encounter an unknown term or have a memory lapse, your partner can supply the term or consult a reference for you.

Additional study activities 1 2 3

4

Invite guest speakers such as lawyers, criminalists, police officers, and judges to speak about specialized topics to your class. Imagine that you have been assigned to interpret a trial involving money laundering and bank fraud. Explain how you will prepare for the case. Download and print photographs of vehicles, people, and buildings, and use them as prompts for role-playing. For example, based on a picture of a car, one student will play a witness to an accident, another student will play the questioning attorney, and a third student will interpret. Pictures of people can be used for descriptions of suspects, and pictures of buildings can be used to describe burglaries or robberies. Make a list of the specific reference works you think every interpreter in your language combination should have, and websites you think are essential for research.

Suggestions for further reading Best, A. (2014). Examples and explanations: Evidence, 9th ed. New York: Wolters Kluwer Law & Business. González, R., Vásquez, V., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. Kay, M., Sime, S., French, D., Ashfield, E., and Brannan, J. (Eds.) (2014). Blackstone’s civil practice. Oxford: Oxford University Press. The National Court Rules Committee. (2016). Federal rules of evidence. Retrieved January 27, 2016 from https://www.rulesofevidence.org/

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Woods, D. (2013). O’Hara’s fundamentals of criminal investigation, 8th ed. Springfield, IL: Charles C. Thomas Publisher.

References Baker, M. (1995). Corpora in translation studies: An overview and some suggestions for future research. Target, 7(2), 223–243. Bowker, L. (2000). Towards a methodology for exploiting specialized target language corpora as translation resources. International Journal of Corpus Linguistics, 5(1), 17–52. Gile, D. (2009). Basic concepts and models for interpreter and translator training, Rev. ed. Amsterdam and Philadelphia: John Benjamins Publishing Company. González, R., Vásquez, V., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press.

10 Professional issues and continuing education

A relatively young profession, court interpreting is still struggling for recognition by colleagues in the legal field, government institutions, the public at large, and even many practitioners. According to García-Beyaert (2015), There is far too often a gap between, on the one hand, the widespread and historic recognition that language assistance (in criminal proceedings) is necessary for procedural fairness in the presence of language barriers and, on the other hand, the recognition that, in the presence of language barriers, ensuring effective communication involves sophisticated measures (infrastructure) and skills (interpreters’ expert abilities). The latter requires conscious policy-making. (p. 52) Thus, interpreters and policy-makers alike must come together to address the shortcomings that still hinder the full professionalization of court interpreting. Much has been written about what makes an occupation a profession, but suffice it to say here that the most commonly identified traits of a strong profession are a body of knowledge that is imparted to novices in the field, a code of ethics, a vocation for public service, and a sense that the occupation is part of one’s identity (Boéri, 2015). The knowledge and skills you must possess and the principles of ethical conduct you must adhere to as a court interpreter have been covered extensively in this book. In this chapter we will take a different approach, focusing on issues of employment, working conditions, self-care, professional associations, certification, and the business of interpreting. Then we will discuss interpreter education, both pre-service and in-service, with an emphasis on expertise and lifelong learning. Practical tips will also be offered throughout the chapter.

Employment as an interpreter The job market for court interpreters varies tremendously from one part of the world to another. If there is a very large population in the country or jurisdiction that speaks a single “minority” language, as is the case with Spanish in much of the United States and Cantonese in Hong Kong, there is likely to be enough demand for interpreters to enable practitioners to work full time in

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the profession. In some places it is common for interpreters to speak several languages and work with all of them on a daily basis; this is true in South Africa, which has 11 official languages and many multilingual citizens. They may have staff positions in the civil service or be self-employed, working as independent contractors. If your language combination is not sought after in the legal system as frequently as the two examples just mentioned, you may have to travel to multiple jurisdictions to work every day as a court interpreter, or supplement your income by interpreting in other settings such as health care or business. Many court interpreters also provide legal translation services, though it is important to note that not all are qualified to do so. As was mentioned in Chapter 7, legal translation is a field of its own that requires specialized training. Registers Judicial systems seeking to address the need for qualified interpreters to serve a rising number of limited language proficient (LLP) litigants have established registers of individuals who can be called as required. The criteria for deciding who is listed as a potential interpreter are not always valid, however. Sometimes people who call and offer their services are simply placed on the roster with no questions asked; in other cases, bilingual individuals who “help out” in one instance find themselves being called for other cases involving the same languages, regardless of their qualifications. Sadly, anecdotes about court officials calling local universities for language professors or seeking interpreters in local ethnic restaurants are not too far from the truth (González et al., 2012). Even systems that require some sort of testing for listing in the register do not necessarily test relevant skills. The Consortium for Language Access in the Courts in the United States encourages states to list only certified or “otherwise qualified” interpreters on their rosters, but it does not have any enforcement powers. In Spain, there is a qualifying exam for having one’s name placed on the register but it consists of two written translations and an interview in both languages (Blasco Mayor and del Pozo Triviño, 2015). Directive 2010/64/EU of the European Parliament has established minimum education requirements for interpreters and other standards to ensure quality, and requires the Member States to maintain and share registers of “appropriately qualified” interpreters (Wallace, 2015). Whether all EU countries will comply with this mandate remains to be seen. In any case, having your name and contact information available to potential clients is of the utmost importance for your success in this field, and therefore it behooves you to be listed on whatever roster the courts use in the jurisdiction where you wish to work. Outsourcing The increasing need for interpreters has prompted some courts to turn to outsourcing as a means of saving money and simplifying the task of locating

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interpreters in all the languages needed. This is an unfortunate trend that has harmed the interests not only of practitioners, but also of the LLP parties they serve, since the driving force is keeping costs down rather than ensuring quality. Recent experiences in the United Kingdom, Spain, and Ireland (García-Beyaert, 2015) show what can happen when the courts award contracts to for-profit agencies that hire so-called “linguists” instead of professional interpreters, their sights set exclusively on the bottom line. Awarding the contract to the lowest bidder is an incentive to cut costs by failing to screen applicants thoroughly and settling for inexperienced, unqualified bilinguals who charge lower fees. The result is ever-lower pay for interpreters and unreliable outcomes in judicial proceedings. Only when a major case goes badly wrong due to poor interpreting does the issue come to light through media coverage, and occasionally judicial officials are shamed into taking action. This occurred in 1989 when two investigative reporters for the San Jose Mercury-News wrote a series of stories on substandard interpreting in the judiciary of California, prompting the Chief Justice of the California Supreme Court to appoint an advisory committee to recommend actions to take (González et al., 2012). At a national level, in 2010 Assistant Attorney General Thomas Pérez of the U.S. Department of Justice wrote letters to all the state court administrations warning them about the failure to address language needs adequately, and in some cases state judiciaries reached formal agreements with the Department of Justice to improve their policies and procedures (González et al., 2012). In 2011, a class action lawsuit was filed against the court system in Toronto for failing to provide qualified interpreters in criminal matters (Small, 2011). Unfortunately, efforts like this do not always produce the desired results (García-Beyaert, 2015). Until influential stakeholders such as the legal profession and the legislature recognize the importance of accurate interpreting in the administration of justice, administrators concerned only with budgetary matters will continue to hold sway in decision-making on the provision of language services in the courts. Working conditions Elsewhere in this book, recommendations have been made regarding best practices in court interpreting. Chapter 2 addresses client education on working effectively with interpreters, and Chapter 7 covers the cognitive load and the stresses that may occur in the different modes of interpreting. Chapter 8 describes minimum standards for remote interpreting. Factors such as preparation time, documentation, ergonomics, acoustic conditions, sight lines, and team interpreting to alleviate fatigue and ensure due process must all be taken into consideration when establishing proper working conditions. Several of the volumes cited throughout the book, particularly Hertog (2001), Corsellis (2008), Braun and Taylor (2012), and González et al. (2012), provide extensive general recommendations in this regard, while other scholars

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stress the importance of addressing the unique demands of specific court systems, such as that of Hong Kong (Ng, 2015) and South Africa (Lebese, 2015). Judicial systems that use professional interpreters in large numbers on a daily basis have internal guidelines governing working conditions. The Supreme Court of Ohio, for example, publishes a bench card for judges requiring them to monitor the proceedings to make sure that interpreters are given the opportunity to prepare adequately, that the parties speak clearly enough for the interpreter to hear, and so on (Supreme Court of Ohio, n.d.); and in its handbook for judges on working with interpreters, it states that two interpreters should be hired for proceedings scheduled to last more than two hours (Supreme Court of Ohio, 2008, p. 48). Other sources call for team interpreting in cases lasting 30 minutes or more (National Association of Judiciary Interpreters and Translators, 2007; Kahaner, 2009). Team interpreting is also strongly recommended in the Professional standards and ethics for California court interpreters manual published by the California judiciary (Administrative Office of the Courts, 2008, p. 33), and is considered the “industry standard” (National Association of Judiciary Interpreters and Translators, 2007) in the United States, though it is not universally recognized and applies only when enough professional interpreters are available in the corresponding language pair. Until such requirements are enforced more widely, it is up to practitioners themselves to insist on adequate conditions so that they can provide the best possible services to their clients. Vicarious trauma It has long been recognized that professionals such as psychologists who work with traumatized victims are susceptible to experiencing vicarious or secondary trauma themselves. In the last few decades, researchers have begun to examine this phenomenon among interpreters (for example, Birck, 2001; Lor, 2012). Symptoms such as anxiety, irritability, insomnia, and substance abuse may be indications of such trauma, and preventive self-care programs are becoming increasingly common in institutions where interpreters work and in professional associations. Developing awareness of vicarious trauma should be an important part of training courses for court interpreters.

Professional associations and unions It is significant that one of the authorities cited above is the National Association of Judiciary Interpreters and Translators (NAJIT), a professional organization that represents interpreters all over the United States. The introduction to this chapter listed some of the commonly mentioned traits of a strong profession; another such trait is the existence of a professional body representing the interests of practitioners (Boéri, 2015). Because court interpreting is still struggling for recognition and does not enjoy the prestige accorded to physicians and attorneys, for example, it is all the more

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important for individual interpreters to band together and find strength in numbers with a view to advancing their agenda. The professional association is one means of accomplishing that; another is a labor union. These organizations offer a sense of camaraderie or collegiality, a venue for establishing and enforcing high standards of conduct, and a vehicle for proposing and negotiating better working conditions. They can also engage in client education from a stronger position than an individual interpreter would have vis-à-vis the legal profession. Many of them offer training opportunities and mentoring programs, and the largest and strongest ones publish scholarly journals, sponsor research, and provide discounted insurance policies or scholarships for their members. NAJIT, as its name suggests, specializes in representing court interpreters; but in other countries, professional associations may advocate for the larger profession, as is the case with the Chartered Institute of Linguists (CIOL) in the United Kingdom. Sometimes large organizations representing language professionals have subgroups, committees or chapters focusing on key sectors of the industry. For example, the International Federation of Translators (FIT) has a Legal Translation and Interpreting Task Force. Sometimes court interpreters join or form labor unions to represent their interest. One such case is the California Federation of Interpreters (CFI), which started out as a professional association and then became a local of the Newspaper GuildCommunication Workers of America “in order to pursue employment status, collective bargaining rights and full benefits for those interpreters interested in employment with the state courts.” It later became an autonomous union local that negotiates contracts for court interpreters employed by the California Superior Courts (California Federation of Interpreters, n.d.). It still performs some of the functions of a professional organization, however, such as offering seminars and conferences. Because of the important role that these organizations play in developing the profession as a whole and in the personal development of their members, it is highly advisable that you research the associations in your country or region and join at least one (many interpreters belong to a local group as well as a national or international organization). Active participation in collegiate bodies is an excellent way to advance your career.

Certification Another distinguishing characteristic of a profession is that it determines who is allowed to use the title and practice the profession. One way of doing that is to establish a licensure or credentialing mechanism as a prerequisite for membership (Boéri, 2015). In the field of court interpreting, being accredited or certified may not be a condition for joining a professional association, but these organizations tend to support certification programs. Neither NAJIT nor the CIOL requires specific credentials for membership, for example, though both promote accreditation or certification procedures as a means of upholding standards (see Chapter 2 for more detailed information on court

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interpreter credentials in different countries). Regardless of whether the certification program is overseen by a professional association or by a government agency, and regardless of whether the credential is a legal requirement for working in the judiciary, it is in your best interest to obtain it in order to be seen as a dedicated professional who can be relied upon by potential clients to guarantee top quality service. Some interpreters even travel to another region or country to become certified or accredited if there is no such program where they work, just to have additional evidence to show their clients that they are dedicated to achieving the highest level of qualification. In addition to the pre-service training that will be discussed later in this chapter, there may be special test preparation materials and workshops for prospective exam candidates in the locations where the most rigorous exams are administered (the United Kingdom, Canada, the United States, and Australia in particular). An example of a testing entity that provides valuable information and advice for those studying to take its exam is the National Center for State Courts (NCSC) in the United States, whose website features links to useful resources, a diagnostic tool for assessing readiness and a candidate’s manual with sample written and oral exams (National Center for State Courts, n.d.). Similarly, the IoL Educational Trust (2016), which is an arm of the Chartered Institute of Linguists in the United Kingdom, offers a wealth of information about the Diploma in Public Service Interpreting on its website. You should not assume that because you have a certificate or degree in interpreting you can pass these exams, and it is important to know exactly what is being tested and what the scoring criteria are (detailed information about the content of some of the major certification exams can be found in Chapter 2). If you are not currently enrolled in a training program that provides regular opportunities to hone your interpreting skills, you should prepare a practice schedule for yourself using self-study materials, or take a test preparation course.

The business of interpreting A profession is frequently regarded as an intellectual pursuit, a vocation that rises above the mundane considerations of the working world. Many interpreter training programs focus exclusively on skill building and professional conduct and ignore the business perspective. Interpreters who hold staff positions in the judiciary may not need to worry about issues that are of concern to small business owners, such as marketing, client relations, letters of agreement, budgeting, overhead, billing, payment terms, and taxation. Freelance interpreters do need to pay attention to these important matters, however. The specifics of your clientele, tax status, insurance needs, and other factors will depend on the country you work in, but you should find out about them and devise a business plan before embarking on a freelance career. Questions such as office space, computers, software programs, bookkeeping practices, and transportation costs are not trivial matters to be worked out once you establish your practice. Information and advice about the nuts and bolts of running a business can

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often be obtained from organizations such as the chamber of commerce or the small business council, and some professional associations offer more specific tips for freelance interpreters. For example, the American Translators Association (ATA) has a business practice list for members to exchange ideas and advice, it features a column called “The Entrepreneurial Linguist” in its publication The ATA Chronicle, and it offers a book called How to Succeed as a Freelance Translator (also applicable to interpreting) on its website (American Translators Association, 2016). To launch your career as a court interpreter, you should find out how to be listed in any register that may exist in your jurisdiction, obtain whatever credential is required, and inquire with the local judiciary about how interpreters are hired and whether staff positions are available. Develop a website or social media presence to market your services, and distribute business cards with your contact information and qualifications among legal professionals in your community. It is important to make a good impression the first time you interpret for a client by arriving punctually, wearing proper business attire and conducting yourself in a professional manner. Word of mouth is far more valuable than any other marketing tool you may use, because lawyers are a tight-knit group and they often exchange information about interpreters and other service providers.

Interpreter education If you are reading this book, you are already aware of the need for specialized training in court interpreting, and you may be enrolled in a certificate or degree program. That is undoubtedly a first step toward acquiring the body of knowledge required to enter this profession, but it is not the only path to that goal. Formal education programs for interpreters in general, let alone court interpreters, are scarce, and you may find yourself forced to cobble together the training you need from a variety of sources. Moreover, your journey to full professionalization does not end as soon as you obtain your certificate, degree or credential. The sense of identity and commitment to quality that characterize all professions require a lifelong dedication to knowledge acquisition and skill maintenance. Pre-service training How novices develop the expertise that characterizes veteran professionals is of much interest in interpreting studies as ideas about effective pedagogy evolve. Pöchhacker (2016, pp. 165–66) notes that expertise is an elusive concept, and he cites a number of studies that have yielded unexpected and even contradictory findings about the distinguishing characteristics of expert interpreters. Given that researchers cannot agree on these qualities, there is no uniform curriculum for developing them in aspiring interpreters in any subset of the profession, much less a relatively new one like court interpreting.

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Nevertheless, some elements are deemed essential by all those who have written about court interpreter education, as will be shown below. In an ideal world, before attaining admission to the profession every court interpreter would go through a rigorous academic program of two or more years of full-time study, with extensive exposure to both theory and practice in the interpreter’s particular language combination and in the legal system the interpreter will be working in. In reality, such programs are few and far between, though the number is likely to grow in Europe in light of the standards imposed by Directive 2010/64 (Martin, 2015). The professional associations and credentialing organizations mentioned earlier in this chapter often provide lists of educational institutions offering related coursework. What should be covered in these programs? This book offers an overview of all of the knowledge and skills required to be a competent court interpreter. It is intentionally generic, however, approaching the field from the broadest possible perspective to address issues relevant to court interpreting anywhere in the world. We have emphasized throughout how important it is to understand the language and culture of the courts in your country and of the LLP population you will be serving. That can only be obtained from experienced trainers who are intimately familiar with the local context. Monzó Nebot (2015) discusses the wide range of educational programs offering courses in legal interpreting and translating, and points out that there are conflicting theories about what should be taught. She highlights a number of efforts that have been made to define the job trainees will be performing after completing their studies and stresses the necessity of adapting to constantly evolving needs in real world settings. Though Monzó Nebot does not attempt to prescribe a specific curriculum, a number of authors have outlined the content that should be presented in a court interpreting program (or in some cases a community interpreting program with a legal component). These authors include Hertog (2001), Hale (2007), Corsellis (2008), González et al. (2012), and Tipton and Furmanek (2016). Below are some recommendations for course content, based on what the aforementioned experts and others prescribe: 1

2

3

Candidates for training should be screened prior to admission so that only those with the necessary aptitudes are selected. There is little agreement on exactly what those aptitudes are; Pöchhacker (2016) describes many attempts over the years to list the qualities of the ideal candidate for training. No matter what other traits are identified, strong (native or near-native) language proficiency is always included. Practical exercises in the component skills of interpreting (text analysis, memory, public speaking, note-taking, etc.) should be included before students begin performing interlingual interpreting. Once they do begin interpreting, they should work with authentic materials that reflect what court interpreters actually do and receive extensive language-specific feedback from experienced instructors.

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6 7

Professional issues Principles of ethical conduct and standards of practice should be covered in depth, accompanied by role playing exercises to help students internalize the principles. The legal system of the country in question should be introduced, including how the courts are organized, criminal and civil procedure and key legal terminology. Equivalent legal terms in the students’ working language(s) should be taught and reinforced through practical exercises. The program should include periodic formative and summative assessments.

The importance of using “realia” or authentic materials when training interpreters has been emphasized by many interpreting scholars, including some in the legal realm (e.g. Crezee et al. 2015; Ng, 2015). In addition to the basic content recommended for all court interpreting programs, some authors advise that ancillary skills commonly performed by interpreters should be the subject of additional training. González et al. (2012), for instance, consider the transcription and translation of recorded conversations to be an important area that merits specialized training, and Braun (2014) advocates the inclusion of remote interpreting among the skills taught in the curriculum. As noted above, comprehensive training programs with all these features are not widely available. Online learning is a growing trend that can alleviate some of the availability problems, but for a skill like interpreting that requires intensive practice and feedback in real time, there is a limit to what can be done in the asynchronous format that characterizes most online courses (Skaaden and Wattne, 2009). As technology advances, synchronous sessions are becoming increasingly feasible and will transform interpreter training in the near future. Can anything short of a full-blown, language-specific degree program be effective? What about short courses and workshops? What about monolingual courses designed to accommodate all interpreters, regardless of their language pair? Many such offerings have been described in the literature (e.g., Hale and Ozolins, 2014; Lai and Mulayim, 2011; Lebese, 2015; Rudvin and Tomassini, 2011), and opinions of their effectiveness vary. Hale and Ozolins (2014, p. 16), for example, conclude that “non-language-specific courses are of problematic value” and do not guarantee success on accreditation exams, but they can provide prospective interpreters with the background knowledge they need. The authors emphasize that monolingual short courses such as the one they taught in Sydney (focusing on domestic violence, health and law) should only be a part of a bilingual interpreting program. Continued professional development By now it should be clear that competence as an interpreter is not something that can be developed quickly or in a predetermined period of time. To reiterate what was stated at the beginning of this discussion of education, the beginning of your career as an interpreter is also the beginning of a lifelong

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commitment to enhancing your knowledge and maintaining your skills. Even more than the pre-service training that is essential to acquiring the necessary baseline competence that all court interpreters should have, continuing education is largely an individual effort. The habits you adopt as a student – soaking up as much information as you can obtain on law-related subjects, researching terms in a multitude of sources and reinforcing them through continued practice, opening your mind to new ways of thinking – will stand you in good stead throughout your career. You will continue to draw on resources such as those discussed in Chapter 9 for case preparation, and the thirst for knowledge that attracted you to this profession will inspire you to seek out new terms and concepts even as you indulge in free-time activities like reading novels, listening to music, or going to the movies. That said, professional associations, testing entities, educational institutions, and even court systems offer a variety of training opportunities for working interpreters. This is especially true in areas where a condition of maintaining your certification is to attend a certain number of hours of continuing education. Once you join a professional organization, you will become aware of these offerings when they are announced on the website or in the newsletter, even when such events are not sponsored by the organization itself. The annual conferences held by many associations present an ideal opportunity to network with colleagues while attending educational presentations on a wide variety of topics. Just to cite one example, the program for NAJIT’s annual conference promises numerous sessions on interpreting techniques, ethical issues, court procedure, different legal specializations, updates on court interpreting programs in various jurisdictions, voice and hearing issues specific to interpreting, business concerns, and language varieties (NAJIT, 2016). Physical presence is not always necessary for partaking of these educational opportunities, as webinars and other types of online courses are offered by a growing number of organizations. Thus, there is no shortage of ways to continue your professional development well into the future.

Additional study activities 1 2 3

Find out if there is a register of interpreters in your jurisdiction and if so, what is required to be included on the roster. Research professional associations representing translators and interpreters and/or court interpreters in your country, and join one as a student member. Investigate educational opportunities available in your area, whether in formal degree or certificate programs or one-off seminars and workshops.

References Administrative Office of the Courts. (2008). Professional standards and ethics for California court interpreters. Court Interpreters Program. San Francisco: Judicial Council of California.

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American Translators Association. (2016). Home page. Retrieved March 25, 2016 from www.atanet.org. Birck, A. (2001). Secondary traumatization and burnout in professionals working with torture survivors. Traumatology, 7(2), 85–90. Blasco Mayor, M. and del Pozo Triviño, M. (2015). Legal interpreting in Spain at a turning point. In M. Blasco Mayor and M. del Pozo Triviño (Eds.), Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 41–71. Boéri, J. (2015). Key internal players in the development of the interpreting profession. In H. Mikkelson and R. Jourdenais (Eds.), The Routledge handbook of interpreting (pp. 29–44). London and New York: Routledge. Braun, S. (2014). Comparing traditional and remote interpreting in police settings: Quality and impact factors. In M. Viezzi and C. Falbo (Eds.), Traduzione e interpretazione per la società e le istituzioni (pp. 161–176). Trieste: Edizioni Università di Trieste. Braun, S. and Taylor, J. (2012). Video-mediated interpreting: An overview of current practice and research. In S. Braun and J. Taylor (Eds.), Videoconference and remote interpreting in legal proceedings (pp. 33–68). Cambridge and Antwerp: Intersentia. California Federation of Interpreters. (n.d.). Our history. Retrieved March 24, 2016 from http://www.calinterpreters.org/our-history. Corsellis, A. (2008). Public service interpreting: The first steps. Houndmills, UK: Palgrave Macmillan. Crezee, I., Burn, J., and Gailani, N. (2015). Authentic audiovisual resources to actualize legal interpreting education. In M. Blasco Mayor and M. del Pozo Triviño (Eds.), Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 271–293. García-Beyaert, S. (2015). Key external players in the development of the interpreting profession. In H. Mikkelson and R. Jourdenais (Eds.), The Routledge handbook of interpreting (pp. 45–61). London and New York: Routledge. González, R., Vásquez, V., and Mikkelson, H. (2012). Fundamentals of court interpretation: Theory, policy and practice, 2nd ed. Durham, NC: Carolina Academic Press. Hale, S. (2007). Community interpreting. Houndmills, UK: Palgrave Macmillan. Hale, S. and Ozolins, U. (2014). Monolingual short courses for language-specific accreditation: Can they work? A Sydney experience, The Interpreter and Translator Trainer, 8(2), 217–239. Hertog, E. (Ed.) (2001). Aequitas: Access to justice across language and culture in the EU. Antwerp: Lessius Hogeschool, Departement Vertaler-Tolk. IoL Educational Trust. (2016). IoLET Level 6 Diploma in Public Service Interpreting (QCF). Retrieved March 25, 2016 from https://www.ciol.org.uk/index.php?option= com_content&view=article&layout=coil:norelated&id=206&Itemid=673. Kahaner, S. (2009). The administration of justice in a multilingual society – open to interpretation or lost in translation? The proper use of interpreters can help protect the rights of persons with limited English proficiency and facilitate the fair and efficient administration of justice [Electronic version]. Judicature, 92. Retrieved October 31, 2011 from https://cfi.memberclicks.net/assets/docs/judicature-marapr2009.pdf. Lai, M. and Mulayim, S. (2011). Training interpreters in rare and emerging languages: The problems of adjustment to a tertiary education setting. International Journal of Social Inquiry, 4(1): 159–184. Lebese, S. (2015). Formulation of court interpreting models: A South African perspective. Stellenbosch Papers in Linguistics, 44, 61–80.

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Lor, M. (2012). Effects of client trauma on interpreters: An exploratory study of vicarious trauma. Master of Social Work Clinical Research Papers, 53. Retrieved May 6, 2016 from http://sophia.stkate.edu/msw_papers/53. Martin, A. (2015). La formación en interpretación en España: Pasado y presente. In C. Iliescu Gheorghiu and J. Ortega Herráez (Eds.), Insights in interpreting: Status and developments. Monographs in Translation and Interpreting, Special Issue 2, 87–110. Monzó Nebot, E. (2015). Understanding legal interpreter and translator training in times of change. The Interpreter and Translator Trainer, 9(2), 129–140. National Association of Judiciary Interpreters and Translators (NAJIT). (2007). Team interpreting in the courtroom. NAJIT Position paper. Retrieved March 24, 2016 from http://www.najit.org/documents/Team%20Interpreting_052007.pdf. National Association of Judiciary Interpreters and Translators (NAJIT). (2016). Annual Conference: 2016 preliminary schedule-at-a-glance. Retrieved March 25, 2016 from http://www.najit.org/Conferences/2016/schedule.php. National Center for State Courts. (n.d.). State interpreter certification. Retrieved March 25, 2016 from http://www.ncsc.org/Education-and-Careers/State-InterpreterCertification.aspx. Ng, E. (2015). Teaching and research on legal interpreting: A Hong Kong perspective. In M. Blasco Mayor and M. del Pozo Triviño (Eds.), Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 243–270. Pöchhacker, F. (2016). Introducing interpreting studies, 2nd ed. London and New York: Routledge. Rudvin, M. and Tomassini, E. (2011). Interpreting in the community and workplace: A practical teaching guide. New York: Palgrave Macmillan. Skaaden, H. and Wattne, M. (2009). Teaching interpreting in cyberspace: The answer to all our prayers? In R. De Pedro Ricoy, I. Pérez, and C. Wilson (Eds.), Interpreting and translating in public service settings: Policy, practice, pedagogy (pp. 74–88). Manchester, Kinderhook: St. Jerome. Small, P. (2011). Court interpreter shortage nears crisis. Toronto: Toronto Star, January 28. Supreme Court of Ohio. (2008). Interpreters in the judicial system: A handbook for Ohio judges. The Supreme Court of Ohio, Judicial and Court Services Division. Retrieved March 24, 2016 from http://www.sconet.state.oh.us/publications/interp reter_services/IShandbook.pdf. Supreme Court of Ohio. (n.d.). Bench Card 2.0. Working with foreign language interpreters in the court. Retrieved March 24, 2016 from http://www.supremecourt. ohio.gov/JCS/interpreterSvcs/benchcard.pdf. Tipton, R. and Furmanek, O. (2016). Dialogue interpreting. London and New York: Routledge. Wallace, M. (2015). Resisting market disorder and ensuring public trust. In M. Blasco Mayor and M. del Pozo Triviño (Eds.), Legal interpreting at a turning point. Monographs in Translation and Interpreting, 7, 115–140.

Appendix A

National Association of Judiciary Interpreters & Translators

Code of Ethics and Professional Responsibilities http://www.najit.org/about/NAJITCodeofEthicsFINAL.pdf & Preamble Many persons who come before the courts are non- or limited-English speakers. The function of court interpreters and translators is to remove the language barrier to the extent possible, so that such persons’ access to justice is the same as that of similarly-situated English speakers for whom no such barrier exists. The degree of trust that is placed in court interpreters and the magnitude of their responsibility necessitate high, uniform ethical standards that will both guide and protect the Court. & Applicability All NAJIT members are bound to comply with this Code. Canon 1. Accuracy Source-language speech should be faithfully rendered into the target language by conserving all the elements of the original message while accommodating the syntactic and semantic patterns of the target language. The rendition should sound natural in the target language, and there should be no distortion of the original message through addition or omission, explanation or paraphrasing. All hedges, false starts and repetitions should be conveyed; also, English

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words mixed into the other language should be retained, as should culturallybound terms which have no direct equivalent in English, or which may have more than one meaning. The register, style and tone of the source language should be conserved. Guessing should be avoided. Court interpreters who do not hear or understand what a speaker has said should seek clarification. Interpreter errors should be corrected for the record as soon as possible. Canon 2. Impartiality and conflicts of interest Court interpreters and translators are to remain impartial and neutral in proceedings where they serve, and must maintain the appearance of impartiality and neutrality, avoiding unnecessary contact with the parties. Court interpreters and translators shall abstain from comment on matters in which they serve. Any real or potential conflict of interest shall be immediately disclosed to the Court and all parties as soon as the interpreter or translator becomes aware of such conflict of interest. Canon 3. Confidentiality Privileged or confidential information acquired in the course of interpreting or preparing a translation shall not be disclosed by the interpreter without authorization. Canon 4. Limitations of practice Court interpreters and translators shall limit their participation in those matters in which they serve to interpreting and translating, and shall not give advice to the parties or otherwise engage in activities that can be construed as the practice of law. Canon 5. Protocol and demeanor Court interpreters shall conduct themselves in a manner consistent with the standards and protocol of the Court, and shall perform their duties as unobtrusively as possible. Court interpreters are to use the same grammatical person as the speaker. When it becomes necessary to assume a primary role in the communication, they must make it clear that they are speaking for themselves. Canon 6. Maintenance and improvement of skills and knowledge Court interpreters and translators shall strive to maintain and improve their interpreting and translation skills and knowledge. Canon 7. Accurate representation of credentials Court interpreters and translators shall accurately represent their certifications, accreditations, training and pertinent experience.

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Canon 8. Impediments to compliance Court interpreters and translators shall bring to the Court’s attention any circumstance or condition that impedes full compliance with any Canon of this Code, including interpreter fatigue, inability to hear, or inadequate knowledge of specialized terminology, and must decline assignments under conditions that make such compliance patently impossible.

Appendix B

The following instructions were developed by the Michigan Supreme Court for its Judge’s Quick Guide to Foreign Language Access (n.d., available at http://courts.mi.gov/administration/scao/officesprograms/fli/documents/lapjud ges%20bestpracticesguide.pdf). They are to be read by the judge or presiding judicial officer to the party or parties in question.

Instructions to parties in the courtroom After the oath has been administered to an interpreter, the court should provide the following instructions to all parties in the courtroom on the interpreter’s role: An interpreter will be assisting the court throughout these proceedings, and those present should know what the interpreter can and cannot do. The interpreter’s only function is to assist the LEP [limited English proficient] individual to communicate effectively with the court, the attorneys, and other parties in the case. The interpreter is not a party in this case, has no interest in this case, and is neutral. The interpreter is prohibited from giving advice, legal or otherwise. Interpreters speak in the first person to ensure the court record accurately reflects the party’s statements and not the interpreter’s conclusion. The interpreter will not be asked questions and will not answer questions, but rather will only interpret them. If a person who is using the services of the interpreter has any questions, those questions must be directed to the court, attorney, witness, or party to the case through the interpreter. If anyone cannot understand or communicate effectively with the interpreter, that person should tell the court. Does anyone have any questions about the role or responsibilities of the interpreter?

Instructions to a witness Before a witness begins his or her testimony, the court should provide the following instruction:

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Appendix B I want you to understand the role of the interpreter. The interpreter is here only to interpret the questions you will be asked and to interpret your answers. The interpreter will interpret only what is said and will not add, omit, or summarize anything. The interpreter will interpret into English everything you say in your language, so do not say anything you do not want everyone to hear. You are here to listen and/or give testimony to this court. When speaking, please speak directly to the attorney or to me. Do not ask the interpreter for advice. If you do not understand the interpreter, please tell me. If you need a question answered or repeated, tell me. Wait until the entire question has been interpreted before you answer. Do you have any questions? Do you understand the interpreter?

Instructions to a jury Before proceedings begin, the court should use the following when advising jury members of their role and obligation: This court seeks a fair trial for all, regardless of the language they speak and regardless of how well they may or may not speak English. Therefore, do not allow the fact that the party requires an interpreter to influence you in any way. Although some of you may know the non-English language being used, it is important that all jurors consider the same evidence. You should not rely in any way on any knowledge that you may have of the language spoken; your consideration of the testimony and/or transcripts should be based only on English interpretation of the evidence introduced in the trial.

Index

abilities: of interpreters 5, 98, 101, 106, 107, 108, 138; of translators 107–8; see also aptitudes, competency in interpreting, skills, strategies aboriginal languages see indigenous languages accreditation see certification accuracy 59, 75–7, 79, 81, 98, 106, 150 accurate interpretation, definition 76–7 accusatorial systems see adversarial systems accused see defendant ad hoc interpreters see interpreters administrative hearings 131 adoption, researching terms 130 adversarial systems 31–3, 44, 46–78, 52; role of interpreter in 3–4, 76, 78, 86, 100 Africa 5; legal systems 29, 31, 33–4; right to an interpreter 17–18; see also South Africa alternative dispute resolution 52 American Convention on Human Rights 15, 18 aptitudes for interpreting 145 arbitration 34, 51 assault, researching terms 127–8 asylum see immigration; remote interpreting see remote interpreting asymmetry see power disparity attorney see lawyer attorney-client: interviews 63, 118; privilege 66, 77; see also defense counsel, lawyer Australia: accreditation 8, 21, 143; interpreter training 9; legal system 31, 76; prison interpreting 65, 66, 118; professional associations 8, 22; regulation of interpreters 7; remote

interpreting 116, 121; right to an interpreter 17; training of magistrates and judges 23 Australian Institute of Interpreters and Translators (AUSIT) 8, 77 AVIDICUS 116, 119, 121, 122 best practices 22, 141; forensic transcription and translation 70; police questioning 62–3; remote interpreting 121–3 business: conflict of interest 78, 79; interpreting in 10, 78, 99, 139; law 131; of interpreting 85, 138, 143–4, 147 Camayd-Freixas, Erik see Postville case Canada: certification 22, 143; interpreter training 9, 143; legal system 31, 76; prison interpreting 65; professional associations 8, 22; regulation of interpreters 7; right to an interpreter 15, 17; certification 6–8, 9, 14, 15, 18, 20, 22, 23, 138, 139, 142–3, 147, 151; Australia 21; Canada 22, 143; federal see Federal Court Interpreter Certification Exam; Netherlands 20–1; Norway 20; Sweden 20; United Kingdom 21; United States 19–20 certified translation 109 challenge: against interpreter 70, 71, 81; interpreting 3, 10, 53, 62, 69, 71, 80, 117, 118, 120, 123; for cause 47; peremptory 47 Chartered Institute of Linguists (CIOL) 8, 142, 143, 21; see also Diploma in Public Service Interpreting children: as interpreters 84, interpreting for 67, 119, 128, 129

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China: attitudes towards the law 28; legal system 36 chuchotage 103 civil code 130; French 30; German 30; Islamic 35 Civil Law tradition 29–31; adoption of Common Law characteristics 32–3, 34; civil procedure in 51–2; criminal procedure in 42–6, 49, 50 civil litigation 41, 51–2; adoption 130; family law 130; labor relations 130; landlord-tenant relations 130 civil procedure 51–2 code of conduct see ethics code of ethics see ethics code of professional responsibility see ethics codes, legal 30–1; Africa 34; Germany 37; Islamic 35 collegiality 81, 142 Common Law tradition 31–2; adoption of Civil Law characteristics 32–3; civil procedure in 51–2; criminal procedure in 42–50 community interpreting 1, 9, 20, 21, 78, 118, 145 comparative law see Civil Law tradition, Common Law tradition competency in interpreting 3, 5–6, 15, 18–19 concentration: comparative law 31, 32; while interpreting 98, 104 conceptual verbatim equivalent 100 conciliation 34, 51–2; in Japan 37 confidentiality 65, 77–8, 83, 118, 151 conflict of interest 78–9, 83, 90, 151 Confucianism 36 consecutive interpreting 4, 52, 61, 67, 87, 99–102, 111, 117; combined with simultaneous 103, 106; component skills 102; definition 99; exams 19, 21, 22; in remote interpreting see remote interpreting; long consecutive 99; note-taking 102; semiconsecutive 101; sequential 101; short consecutive 99; summary 4, 52, 103 Consortium for Language Access in the Courts 7, 15, 139 continuing education 21, 82, 147; see also professional development Convention for the Protection of Human Rights and Fundamental Freedoms 7, 14, 18

corpora 134 correctional facilities see prison court interpreting: laws see legislation; other names 1; see also interpreters courtroom: layout 53, 54, 55; actors 23, 84; see also remote interpreting, protocol credentialing see certification criminal code see penal code criminal law: Islamic 35; see also criminal procedure criminal procedure 13, 32, 37, 41–51 criminalistic evidence 47, 102, 129 Crown see prosecution, interpreting for culturally-loaded terms 50, 151 culture: awareness 3, 4, 18, 145; clarification of misunderstandings 3, 4, 23, 28–9, 53, 59, 77, 80, 88, 89, 90–1, 98, 145, 151; explanations 4, 5, 63, 67, 77, 80; 98; influence on law 33, 35, 36, 37; legal 23, 28, 145 customary laws 29, 31, 34 cyber crimes, researching terms 129 décalage 104 defendant 3, 4, 5, 23, 30, 42, 43, 51, 63, 76, 79, 80, 81, 85, 88, 90, 91, 99, 102, 103, 105, 107, 114, 120, 129, 136: procedural rights 2, 7, 14, 15, 42–8; right to an interpreter 2, 7, 13–18, 24, 51, 63 defense counsel 4, 15, 63, 70, 89, 90, 91 119; in criminal procedure 42–50; interpreting for 99, 116; see also attorney-client interviews, lawyers deposition 51 detachment, professional 80, 89 dictionaries 85, 86, 98, 132–4 digital pen 106 digital recorders 106 dilemmas see ethics Diploma in Public Service Interpreting 7–8, 9–10, 21–2, 143 Directive 2010/64/EU 7, 9, 14, 139, 145 divorce 34, 51, 130 domestic violence 50, 128–9, 146 driving offenses 126 drug cases 50, 127, 133 dual role interpreters see interpreters ear-voice span 104 educating the public about interpreting 8, 22, 91, 135 education see training

Index E-Justice 119 emotions: interpreter’s 80, 88, 89, 128; witness’s 89, 100, 120 employment of interpreters 103, 138–41 equivalence, linguistic 61, 97–8, 100, 108 errors: correction of 71, 76, 77, 86–7, 151; in simultaneous interpreting 103, 121 ethics 4, 63, 67, 138; codes of 75–82, 94, 138, 150–2; dilemmas 82–4, 92–3; pressure to violate 61, 84, 89–90; training in 146–7; vs. standards of practice 83 Europe: Civil Law tradition 29–31; ethics 76, 80; influence on colonies 34, 35; interpreter training 9, 145; foreign prisoners 58; professional associations 8, 22; regulation of interpreters 6, 14; remote interpreting 116, 119, 121; right to an interpreter 2 European Convention for the Protection of Human Rights and Fundamental Freedoms 18 European Court of Human Rights 37 European Court of Justice 37 European Legal Interpreters and Translators Association (EULITA) 8, 22, 23; code of ethics 76, 77, 81, 82 European Union 2, 7; certification 21; Eur-Lex website 134; language rights 14, 16; law 29, 37; remote interpreting project 116; see also Directive 2010/64/EU examining magistrate see judge, investigative exercises, practical 84, 109–11, 145, 146 expert witness: interpreter as 14, 71; interpreting for 53, 129; testimony 47, 53, 88, 102, 128, 129 fatigue 77, 82, 88, 103, 119, 121, 122, 140, 152 Federal Court Interpreter Certification Exam (FCICE) 6, 15, 19–20 fidelity see accuracy first-person interpreting 76, 78, 153 foreign prisoners see prison forensic transcription and translation (FTT) 68–71; best practices 70–1 France: civil code 30; legal system 42, 43, 44, 46, 50; remote interpreting in 112; see also Civil Law tradition function of interpreter see interpreters, role

157

Geneva Convention Relating to the Status of Refugees 66 German, interpreting 104, 105 Germany: civil code 30; legal system 31, 37, 44, 50; see also Civil Law tradition gestures, reproduction of 4, 76–7, 89 glossaries 85, 132, 133, 135 guidelines: for forensic transcription and translation 70; for interpreted proceedings 15, 23, 141; for interpreters, practical 14, 66, 83–91; for interpreting in prisons 65; for judges 23; for law enforcement 60, 62 Hindu law 34–5 history of court interpreting 5–9 homicide, researching terms 129 Hong Kong 16, 78, 100, 138, 141 immediacy 31 immigration proceedings 21, 51, 66–8: remote interpreting of 120 impartiality 3, 4, 53, 61, 65, 78–81, 83, 89, 90, 91, 151 impediments to interpreting 77, 82, 152 India 17, 34–5 indigenous languages 9, 15, 16, 17 inquisitorial system see Civil Law tradition instructions in interpreted proceedings 23, 122, 153–4; to the jury about interpreting 48, 154 integrity 81 International Court of Justice 37, 134 International Covenant on Civil and Political Rights 2, 13, 16, 18, 59 International Criminal Court 37 International Federation of Translators 75, 142 international law 29, 37 international tribunals 17, 18, 37 Internet searches 85, 133, 134–5 interpreters: abilities see ability; ad hoc 65; aptitudes see aptitudes for interpreting; as expert witnesses 13, 71; as mandated reporters 77, 129; dual role 65; function of 98–9; interventions 4, 38, 63, 77, 80, 86, 90, 101–2, 120, 123; recruitment of 5–7; right to 2, 7, 10, 13–18, 59, 60, 64; role of 2, 3, 16, 18, 23, 28, 41, 52–3, 61, 62, 67, 75, 82–3, 84, 85, 90, 91, 98, 101, 153–4; safety of 62; screening 5–7 ; selection 5–7; third-person references

158

Index

77, 78, 80, 86; visibility 61, 83; working with see training; see also court interpreting interpreting: for the defense 63, 89, 90, 99, 116; definition 97; expert witness testimony 53, 129; for witnesses 13, 15, 16, 19, 23, 24, 52, 53, 59, 63, 76, 77, 81, 82, 85, 86, 87, 88, 89, 90, 99, 100, 101, 102, 103, 118, 119, 128, 136, 153–4; interviews 59–62, 63, 67, 76, 99, 117–18, 120, 121, 122; skill development 8, 63, 82, 87, 109–11, 143, 144, 145, 146–7, 151 interrogation see police interventions see interpreters interviews see interpreting, police introduction, interpreter’s 84, 85–6 see also pre-session meeting Islamic law 35 Japan 16; conciliation 51–2; courtroom layout 55; legal system 36–7, 44, 46, 50, 51 judge 16, 18, 20, 22, 28, 60, 61, 76, 79, 80, 81, 83, 84, 85, 86, 87, 88, 89, 99, 100, 104, 107, 114, 120, 122; guidelines for 22–3, 62, 141, 153–4; investigative 42–5; lay 33, 37, 46; role of in Civil and Criminal Law traditions 30–2, 43, 45–52; training 23, 90, 91 juez de garantìa 42 jurors, interpreting for 16, 47 jury 31–2, 48; instructions 23, 154; selection 47 juvenile court 50–1 Korea see South Korea labor relations, researching terms 130 landlord-tenant relations, researching terms 130 language access see language rights language rights 2, 8, 10, 14, 22, 24, 59, 64, 131 languages of limited diffusion 118, 136; see also indigenous languages Latin America: legal systems 29, 32, 42: right to an interpreter 15–16 law enforcement see police law of nations see international law laws on court interpreting see legislation lawyers 2, 3, 13, 15, 19, 22, 28, 31, 32, 60, 61, 63, 66, 67, 76, 77, 79, 80, 83, 85, 86, 87, 88, 89, 90, 91, 99, 100,

101, 118, 131, 135, 143, 144, 154; guidelines for 23, 62, 85, 153; role in criminal and civil procedure 42–53; training 91; use of language 3, 28, 60, 102; see also attorney-client interviews, defense counsel lay assessor see judge, lay lay magistrate see judge, lay laypersons, attitudes towards the legal profession 1, 28 legal language 3, 28, 60, 61, 102 legal reforms in Latin America 32 legal systems: African 33–4; Civil Law 29–31; Common Law 31–2; Confucian 36–7; Hindu 34–5; Islamic 35–6; Japanese 36–7; Latin American 29, 32 legal traditions see legal systems legislation on court interpreting 2, 5, 7, 10, 13–15, 17–18, 20–21, 28, 65, 75, 131 limited language proficient (LLP) 3, 13, 14, 38, 67, 78, 80, 81, 118, 119, 120, 131, 139, 140, 145; definition 1 Malaysia 16 managing flow see turn-taking mandated reporters see interpreters meaningful language access, definition 2 mediation: interpreter 4, 66; to resolve disputes 52 Middle East 17 National Accreditation Authority for Translators and Interpreters (NAATI) 9, 21 National Association of Judiciary Interpreters and Translators (NAJIT) 8, 63, 69, 70, 141, 142, 147; Code of Ethics and Professional Responsibilities 150–2 National Center for State Courts (NCSC) 7, 143 Netherlands, the 20, 64, 66, 118 neutrality see impartiality New Zealand 17, 31 non-verbal elements see paralinguistic elements note-taking see consecutive interpreting Nuremberg trials 5, 6 oath, interpreter’s 153 objections, interpreting 53 offenses: serious vs. minor 43, 46, 50, 51; private 36, 42; public 42; specific terminology 126–31

Index online courses 146, 147 online resources 85, 94, 132, 133, 134, 135 orality 31, 32 outsourcing 22, 139–40 paralinguistic elements 70, 71, 100, 108 pass rate, interpreting exams 5, 19 penal code 42, 127, 128, 132; Japan 37 penal law see criminal law People, the see prosecution, interpreting for plain language 28, 30 police, interpreting for 1, 7, 8, 13, 21, 59–63, 68, 76, 79, 89, 90, 117, 120, 121; guidelines 62; training 60, 61, 63 Postville case 83, 93 power disparity 60, 61, 62, 65, 80, 91 power imbalance see power disparity preparation: for assignments 23, 85, 88, 106, 117, 120, 122, 126–36, 140, 141, 147; for exams 9–10, 20, 143 pre-service training see training pre-session meeting 85–6, 101 see also introduction, interpreter’s prison, interpreting 1, 58, 59, 63–6; Australia 64, 65, 66; Europe 58; foreign prisoners 58, 59, 64, 65; United Kingdom 65; United States 63, 64, 118 private offenses see offenses proceedings interpretation 3–4, 52, 103; definition 99 profession, traits of 138, 141 professional associations 7, 8, 9, 10, 22, 75, 81, 135, 138, 141–2, 143, 144, 145, 147 professional development 78, 82, 146–7 professional organizations see professional associations professionalization 7–8, 10, 63, 65, 138, 144 proficiency exams see certification property crimes, researching terms 127 property law, researching terms 131 prosecution, interpreting for 3, 13, 89, 90, 91, 116 protocol, courtroom 81, 87, 102, 151 public offenses see offenses public service interpreting see community interpreting public translator see sworn translator

159

recruitment see interpreters reference works see dictionaries reforms, legal: China 36; Civil Law 30; Japan 37; Latin America 32 refugees: Geneva Convention relating to the Status of Refugees 66; interpreting for 67–8; rights and protections 66–7; see also immigration, remote interpreting register of interpreters 7, 14, 21, 139, 144 register, linguistic 3, 19, 47, 76, 88, 102, 110, 133, 151 Registry of Interpreters for the Deaf (RID) 7, 20 regulations see legislation remote interpreting 17, 59, 65, 66; applications 116–20; best practice 121–3; challenges 117, 118, 120, 121, 123; configurations 114–16; consecutive interpreting 116, 117, 119, 123; court proceedings 117, 118–19; definition 114; due process concerns 119; equipment 120, 121, 122, 123; immigration proceedings 120; justifications 116, 118–19; police encounters 117; pretrial detention facilities 117–18; prisons 118; research findings 120–1; sight translation 120; simultaneous interpreting 116, 117, 119; technical standards 116; telephone 116, 117, 118, 119, 120, 121, 122, 123; training of interpreters see training; training of law enforcement and court personnel see training; videoconference 114, 116; working conditions 114, 117, 120, 122, 123 research: findings of 22, 58, 60, 62, 65, 68, 78, 83, 101, 114, 116, 117, 119, 120–1, 141, 142, 144; terminology see terminology resources 69, 118: assessing reliability 132, 133, 135; human 132, 136; terminology see terminology restorative justice 50 restructuring 104, 105, 106, 110 right to an interpreter 2, 13; Africa 17–18; Asia 16–17; Australia and New Zealand 17; Canada 15; Europe 14; Latin America 15–16; Middle East 17; United States 15 rights, procedural 60, 67, 117 role: court interpreter’s 2–4, 10, 16, 18, 23, 28, 41, 52, 54, 61, 62, 67, 75, 82–3, 84, 85, 90, 91, 98, 101, 153–4; judge’s see judge

160

Index

Roman Law see Civil Law tradition roster see register of interpreters rule of law 29 screening see interpreters secondary trauma see vicarious trauma selection see interpreters semiconsecutive interpreting 101 sequential interpreting 101 sex offenses, researching terms 128 sharia law see Islamic law sight translation 23, 99, 106–7; component skills 107; definition 106; exams 19; handwritten documents 107; in remote interpreting 120 sign language interpreting 17, 20, 47, 97, 121, 122; see also Registry of Interpreters for the Deaf simultaneous interpreting 3, 4, 5, 6, 18, 19, 52, 99, 100, 102–6; combined with consecutive 103, 106; component skills 105–6; definition 102; equipment 23, 103; exams 19, 21; exercises 110; in remote interpreting see remote interpreting; sound files 69; strategies 104–6; whispered 67, 103; working conditions 103–4 Singapore 17 skills, required 98, 102, 105–6, 107, 108, 138, 145; development and maintenance 109–11, 138, 143, 145, 146, 147, 151; see also abilities sound files, interpretation of 69; see also forensic transcription and translation South Africa 18, 34, 91, 139, 141; courtroom layout 54 South Korea 16, 67 standards of practice see code of ethics standards, interpreting 2, 3, 6, 7–8, 10, 17, 18, 20, 22, 59, 65, 75, 76, 91, 139, 140, 141, 142, 145, 151 stressful conditions 5, 6, 53, 61, 83, 106, 117, 128, 140 summary interpretation 2, 4, 52, 61, 76, 80–1, 103 Sweden 6, 9, 20, 66, 67 sworn translator 7, 15, 108 team interpreting 81, 136, 140, 141 technology 69, 70, 103, 106, 146; see also remote interpreting, simultaneous interpreting telephone interpreting see remote interpreting

terminology: databases 134; legal 19, 20, 22 see also Civil Law tradition, civil litigation, civil procedure, Common law tradition, criminal procedure; research 78, 81, 82, 83, 85, 86, 88, 106, 108, 132–6; resources 132–6; specialized 19, 23, 78, 88, 126–31 terms: for certification 18–19, 21; for court interpreters 1; unknown 77, 81, 82, 85, 86, 88; used in this book 1, 29, 41, 97; testimony see witness testing see certification text messages, translation of 69 third person, interpreter references see interpreters training: court interpreters 5, 6, 7, 8–10, 16, 17, 18, 21, 22, 63, 67–8, 80, 82, 83, 84, 91, 103, 104, 107, 108, 123, 138, 139, 142, 144, 145, 146, 147, 151; court personnel 122; curriculum 102, 123, 141, 143, 146; forensic transcription and translation 68; judges and attorneys 22–3, 24, 90–1, 142; law enforcement personnel 60, 61, 63, 65, 67, 122; pre-service 144–6, 147; remote interpreting 121, 122, 123; short courses 146; test preparation 20, 143; translation 139, 108; workshops 146 transcription see forensic transcription and translation (FTT) translation, document 107–8; definition 97, 108; legal 108, 130, 131, 139; required skills 108; types of documents 107; see also certified translation, forensic transcription and translation, sight translation, sworn translator transparency 63, 80–1, 86 turn-taking, coordination of 61, 101, 102, 121 United Kingdom: certification 8, 22; legal system 31, 33, 46, see also Common Law tradition; national register 21; outsourcing 140; plain English movement 28; police interviews 62; prison interpreting 65; professional association 22, 142; required use of interpreters 7, 17; training 9, 143 United Nations: civil and political rights 59; Civil Law influence 29; Geneva Convention relating to the Status of Refugees 66; International

Index Covenant on Civil and Political Rights 13, 59; international law 37; right to an interpreter 13; tribunals 37; terminology database 134; website 134 United States: certification 6–7, 19–20, 143; immigration proceedings 67; interpreting standards and practices 2, 3, 77, 82, 99, 103, 108, 131, 139, 141; job market 138; language rights 2, 8, 15; legal system 31, 43, 44, 46, 47, 49, 50, 51, 76, see also Common Law tradition; plain English movement 28; police interviews 62; prison interpreting 63, 64, 118; professional associations 8, 22, 141; remote interpreting 116, 119; training 9 Universal Declaration of Human Rights 2 unwritten law 31 verbatim record 49, 50, 52, 76, 77, 89, 100; in forensic transcription and translation 68, 70 verbatim requirement 100

161

vicarious trauma 128, 141 videoconference interpreting see remote interpreting Vienna Convention on Consular Relations 59 visibility see interpreters war crimes tribunals 5, 37 weapons, researching terms 128 whispered interpreting 67, 103, 106 white collar crimes, researching terms 129 wills and probate, researching terms 130 witness: expert see expert witness, interpreters as expert witnesses, interpreting for expert witnesses; instructions 23, 153; interpreting for 4, 5, 13, 15, 16, 19, 24, 52, 53, 59, 60, 63, 76, 77, 79, 81, 82, 84, 85, 86, 87, 88, 89, 90, 91, 99, 100, 101, 102, 103, 116, 118, 119, 122, 128, 129, 136, 153–4 working conditions 10, 104, 114, 120, 131, 138, 140–1, 142 working with interpreters, training in 23, 24, 60, 63, 67, 87, 141 written vs. oral language 107, 108

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