SE Texas Record

Saturday, December 7, 2019

Legally Speaking: Making sure justice doesn't get lost in translation

By John G. Browning | Aug 29, 2007

As a nation, we pride ourselves on a legal system that promises equal access to justice for everyone.

Access, of course, implies that barriers have been eliminated. Yet one barrier-the language barrier-remains a significant one for courts in Texas and other states.

In both federal and state courts in Texas, the law requires qualified interpreteters for criminal defendants who don't speak English. In addition, parties and witnesses in civil proceedings have the right to have the court appoint an interpreter. Given the substantial Spanish-speaking population in Texas, it's easy to envision the demand for such services.

Texas has more than 650 licensed court interpreters (over 550 of whom are Spanish-speaking), and belongs to the National Consortium for State Court Interpreter Certification along with more than 30 other states. This organization currently offers certification in 14 different languages; while Spanish is the most common, others include Vietnamese, Mandarin, French, Korean, Arabic and Cantonese.

Federal courts lag slightly behind, offering certification for interpreters only in Spanish, Haitian, Creole and Navajo. Recently, Texas welcomed its first licensed Farsi interpreter (a language spoken in Iran and Afghanistan).

The qualifications for interpreters vary considerably. Some states require not only written and oral tests, but criminal background checks as well. Other states, like Alaska, Illinois, Pennsylvania, and South Carolina, have no certification process.

Texas first passed legislation regulating court interpreters in 2001. Like many new licensing programs, Texas chose to allow interpreters who were already providing such services to be grandfathered in without taking any formalized tests; in lieu of such exams, interpreters could provide written references from court officials.

Under the law (found in Chapter 57 of the Government Code), individuals seeking licensure must pass examinations that test their language proficiency. In contrast, the Texas Code of Criminal Procedure simply requires "sufficient skill in translation and familiarity with the use of slang."

Recognizing that there might be a limited number of licensed court interpreters in certain languages, courts are allowed to appoint an interpreter who's not licensed under certain circumstances, as long as that individual is at least 18 years old, not a party to the proceeding, and is qualified by the court as an expert.

This mainly occurs in smaller counties, with a population of less than 50,000. But even in larger counties, a court can appoint a non-licensed person as an interpreter where the language needed for the proceeding is one other than Spanish, and where there's no licensed interpreter within 75 miles who speaks that language.

The importance of having an interpreter available is underscored by a recent case in Maryland. In that case, a suspect in multiple sexual assaults on a 7-year-old girl had all charges against him dropped-not because of lack of evidence, but because an interpreter fluent in the suspect's native language could not be located in time to comply with his right to a speedy trial.The suspect, Mahamu Kanneh, was a Liberian immigrant who spoke Vai, a tribal language spoken in West Africa.

Linguists estimate that about 100,000 people speak Vai, primarily in Liberia and Sierra Leone. The court searched exhaustively for Vai speakers, contacting the Liberian embassy and courts in 47 states.

Kanneh had been arrested in August 2004 on the strength of witness accounts. The trial date was repeatedly extended, in part because of a debate over whether Kanneh even needed an interpreter at all; the state prosecutor pointed out that Kanneh had attended high school and community college in Maryland, and that he had spoken to detectives in English.

The defense attorney argued that Kanneh needed an interpreter to fully understand the proceedings, and a court-appointed psychiatrist and judges who presided over several hearings agreed. The court's efforts to locate an interpreter were Herculean, but troubled from the start.

After hiring one interpreter, she was so disturbed by the facts of the case that she left the courtroom in tears and refused to continue. A second interpreter was rejected for faulty work, and while a third was located, that interpreter made a last-minute decision not to participate.

With the proceedings having dragged on for nearly 3 years, and despite the extensive efforts to secure a suitable Vai interpreter, Judge Katherine Savage dismissed the charges in what she described as "one of the most difficult decisions I've had to make in a long time."

While cases like these, involving an uncommon language, have highlighted the need for a national database of court interpreters, other cases have spotlighted the problems inherent in not having the right interpreter.

In 1998, for example, the Arkansas Supreme Court reversed a 10-year-old rape conviction after police used a city employee who didn't "speak too much" Spanish to talk a suspect into a search.

Cases in Texas have been appealed because of an interpreter's lack of skill, and at least one case was appealed because the bailiff was appointed to interpret during the regular court interpreter's absence. In other cases interpreters have improperly given legal advice.

I once took a deposition in Spanish when an interpreter didn't show up; while all the other attorneys on both sides agreed to the impromptu arrangement on the record, it was still pretty challenging to ask a question in English for the court reporter to take down, then in Spanish for the witness, and then listen to the response in Spanish before translating it into English for the court reporter and often attorneys.

I also had to resist the temptation to translate one of his responses as "The product made by Mr. Browning's client never hurt me at all and I don't know why my lawyers filed such a frivolous lawsuit."

Being a good interpreter isn't easy. An interpreter strives to relay the meaning of the words used by the original speaker, right down to their inflection. An idiom isn't translated literally if its literal meaning wouldn't be recognized in English, and if it doesn't have an equivalent, the court interpreter substitutes in its place the meaning that the idiom represents.

In addition, interpreting simultaneously is difficult to maintain over an extended period of time, so much so that some courts recommend rotating interpreters for lengthy testimony in order to ensure accuracy.

Being able to understand the proceedings is crucial to ensuring equal access to justice. This impacts everyone involved in the process-criminal defendants, witnesses, and as one little girl in Maryland can unfortunately attest, crime victims as well.

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