The attorney has at least three opportunities to challenge a court interpreter: at the time appointment is requested or needed (but one is not appointed), at the interpreter’s qualification through voir dire or some other process, and during the interpretation itself to the extent that the interpretation is inaccurate or the interpreter’s performance presents other issues serious enough to prejudice the client. Issues of appointment have been greatly minimized in light of the 2008 amendments to La. C.C.P. art. 192.2 and La. C.Cr.P. art. 25.1, both of which mandate the appointment of a court interpreter when requested by an LEP individual. However, issues of appointment should not be conflated with issues of interpreter qualification, or once the interpreter has been qualified, with issues of competence and performance. 

The additional issue of whether an attorney may challenge the qualification of the interpreter after the interpreter has been properly qualified by a court is not addressed here. Nevertheless, by way of short discussion, La. C.E. art. 706 offers the opportunity to challenge the appointment. As this done through a hearing to determine whether an interpreter should be appointed, it is apparently available only before the interpreted begins to interpret for a client or witness. However, it is possible to envision a situation in which an interpreter, previously qualified, turns out to be unqualified given their actual performance. For example, there might be a clear language mismatch between witness and interpreter, or the interpreter might consistently deliver subpar interpretations or make serious ethical lapses. Such a performance would belie the initial qualification. If a mere objection to competence will not remediate the prejudice to the client, disqualification or removal should be an option. At this point, Louisiana courts offer no guidance in this regard. However, it stands to reason that the court will entertain a motion to remove or disqualify an interpreter in appropriate circumstances, when fairness and the LEP individual’s meaningful participation in the proceedings are grossly compromised.1

• 1For a good example of a court rule which provides for the removal of an interpreter, see Tenn. R. Sup. Ct. 42, § 6.

Stating the obvious, interpreters must be qualified in order to interpret in a court proceeding. The essence of an interpreter’s qualifications is the competency to render an accurate interpretation. It cannot be emphasized enough that the interpreter is of critical importance to the LEP individual. This is equally true whether the communication is with the court or with the individual’s attorney. Just as the court would not appoint its clerk or stenographer or use a family member to interpret in court, so should attorneys not choose individuals who have no training, skill, or experience as interpreters when communicating with a client. 

For purposes of court appointment, interpreter qualifications are governed by the La. C.E. art. 604, which states that “[a]n interpreter is subject to the provisions of this Code relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation.”  Thus, Louisiana, like many other states, classifies interpreters as expert witnesses.  Yet nothing in Louisiana law sets forth any interpreter standards, nor is there any guidance for judges or lawyers to follow when considering the use and evaluation of an interpreter other than La. C.C.P. art. 192.2, which simply requires that the interpreter be competent, and La. C.E. arts. 702 and 706, which must be read in pari materia with La. C.E. art. 604.  

Article 702 of the Louisiana Code of Evidence allows an individual qualified as an expert on account of the individual’s education, knowledge, experience, training, or skill to testify to an opinion on a particular subject. If the expert is qualified, the article further requires that the opinion satisfy a four-element test: (1) the opinion will help the trier of fact to understand the evidence or ascertain facts at issue; (2) there is enough data to support the opinion; (3) the opinion was reached through an established method; and (4) the methodology has been properly applied in reaching the opinion.  

When applied to interpreters, this language is like fitting a square peg in a round hole. This ill fit should be immediately obvious because interpreters, unlike experts, cannot and should not give opinions. That alone should make La. C.E. art. 702 inapplicable. Leaving that fundamental difference between interpreters and experts aside, one must still do a bit of mental gymnastics to make the factors fit. The first two factors could be fulfilled by acknowledging that, yes, an interpreter will help the court understand the facts in English, which facts are those being spoken in the language other than English. The last two factors, reliability of the methodology and their applicability seem to be met as long as the interpreter is qualified and competent as an interpreter. Nevertheless, despite the poor fit between the requirements for expert witnesses and the role of the interpreter, the court’s discretion to qualify the interpreter is tied to La. C.E. art. 702 pursuant to the cross-reference set out in La. C.E. art. 604. A trial court’s refusal to qualify an interpreter-expert is reviewed for manifest error.  

The other evidentiary provision implicated here, La. C.E. art. 706, regulates a court’s appointment of experts (presumably including interpreters). This article allows a court, on its own or upon motion by a party, to enter an order to show cause why an expert should not be appointed.  Article 706 also allows any court-appointed expert to be called to testify and to be deposed. Nevertheless, Article 706 is as inappropriate as Article 702 when applied to interpreters. Because interpreters must be disinterested, they are ethically prohibited from giving an opinion and thus are unlikely to need to testify or be deposed. The only exception would be if the interpreter has been qualified as a language expert, for instance, as a linguist who could give an opinion as to whether a written contractual arrangement was accurately translated or whether previous court interpretations were accurate. In such cases, the interpreter-expert is not serving as a court interpreter. However, an attorney worried about the accurate nature of an interpretation might consider retaining such an expert to be present during the proceedings in order to monitor the competence of the court-appointed interpreter. 

In the end, however, the fact remains that a court interpreter is not an expert in the sense contemplated by La. C.E. arts. 702 and 706. Neither applies, as interpreters should not be deposed, give an opinion, or otherwise testify.

At times an attorney may deem it appropriate to challenge a court interpreter’s qualifications. The decision should be carefully weighed in light of interpreter standards and ethics, and, even more importantly, the language needs of the LEP client. For example, a court might appoint a Spanish-speaking interpreter for an LEP individual from Guatemala, presuming that that individual speaks Spanish, when in fact the individual speaks the Quechua language, but no Spanish. More nuanced still is where the LEP individual speaks a local dialect or one heavily influenced by colloquialisms. 

In keeping with the Code of Evidence, the challenge should be made by requesting a voir dire of the interpreter at the time the appointment is being considered. However, note that under the La. C.C.P. art. 192.2 and La. C.Cr.P. 25.1, which mandate the appointment of a qualified interpreter upon request by the LEP individual, a legitimate question arises as to whether, for example, interpreters who are listed by the Louisiana Supreme Court as “registered” or “certified” are presumptively qualified by virtue of having been previously vetted by the Court (through training and testing). There are no rules that address this issue, and thus, the attorney is left to consult what is available: La. C.E. arts. 702 and 706.

Possible voir dire to establish an interpreter’s qualifications might include questions about the communication needs of the particular LEP individual involved, knowledge of legal terminology, any conflicts of interest which might exist, ethics, mastery of languages, and/or prior disqualification. The Best Practices Manual on Interpreters in the Minnesota State Court System offers some ideas for voir dire of interpreters.1

• 1Minn. Sup. Ct. Interpreter Advisory Comm., Best Practices Manual on Interpreters in the Minnesota State Court System J-1 (1999).

Accurate communication and appreciation for what is being said in a courtroom is paramount in creating a fair legal environment. The interpreter can “inadvertently change the tenor of participant’s statements and thereby communicate an attitude that the speaker neither holds nor wishes to convey.”1 These mishaps can change perceptions of the LEP individual’s credibility, “competence, intelligence, and trustworthiness.”2   The interpreter’s ability to change the communication dynamic is not just about what the interpreter says. “Contrary to the judiciary’s assumptions, the interpreter is not a passive conduit, but an active participant and [manager of] the intercultural event of interpreting.”3   An interpreters’ methodology and skill level are significant because they affect the accuracy of the interpretation. This process gives new “ears” to the LEP individual and, in turn, shapes and informs the most fundamental and basic function of the courts—ascertaining facts and making credibility determinations based on those facts. A poor interpretation can be catastrophic for an LEP client if, for example, it creates an appearance of untrustworthiness in a case turning on the credibility of competing witnesses. 

Interpreters must understand both cultures, that is “nuances of culture, region[,] and dialect”4 as well as styles of speaking, which the interpreter should maintain so that the communication is meaningful. Unfortunately, “the bench and bar regularly underestimate the difficulty of facilitating accurate communication between languages and cultures”5 as linguistic accuracy is not necessarily sufficient to convey appropriate meaning. Simply providing linguistic accuracy does not place the non-English speaker on equal footing with the English speaker; an LEP individual may still be at a disadvantage. In fact, scholars working in this area “argue that interpreters ought to perceive their role as communication facilitators, thereby abandoning attempts to provide verbatim renditions in favor of ensuring actual understanding between the speakers.”6

In short, interpretation is not simply a mechanical act; it is contextual, rooted in the social and cultural environment in which the languages are spoken:

Among the contextual factors that the interpreters should consider are the social issues that inevitably affect communication such as ethnicity, race, gender, and power differentials. The significance of these factors cannot be overstated, particularly in the charged atmosphere of the courtroom, because they often directly affect the meaning, if not the actual text, of a message. If the English speakers in the courtroom share one meaning and the non-English speaker perceives another, there is significant potential for prejudice. At the very least, the non-English speaker becomes a non-comprehending party to the interaction. Alternatively, if the interpreter and non-English speaker have a shared meaning that is foreign to the English-speaking participants, the non-English speaker’s testimony can appear nonsensical or absurd to the English-speaking people. 7

In short, failure to take pragmatic meanings into account can hamper communication.

Beyond the linguistic and cultural intricacies of the actual interpretation, interpreters must have enormous memory skills in order to retain the information in the process of interpretation; in fact, “[e]ven when witness testimony is mundane, courtroom interpreting requires exceptional recall and attention to detail.”8  Interpreter fatigue is not uncommon:

The complex skills involved in courtroom interpreting mean that interpreter fatigue should be of significant concern to courts and attorneys. Studies indicate that interpreter error increases dramatically after twenty minutes of interpreting and it is recommended that courts consider appointing teams of interpreters or provide regular breaks to ensure the highest level of accuracy.9

Judges may also feel impatient or believe the interpreter is taking too long; this kind of pressure may in turn affect the accuracy of the interpretation as the interpreter responds to the court’s disquiet. Periodic rest periods should be considered at the very least every 1½ to 2 hours. A similar problem arises when interpreters are not given the opportunity to familiarize themselves with complex legal information, names, and, most importantly, the linguistic needs of the non-English speaker.

Throughout the whole process, interpreters must also understand legal terminology and the concepts associated with it, as well as the rules and procedures of the particular court where the interpretation takes place. It may also be useful, to the extent necessary, for the interpreter to become acquainted with the terminology for judicial officers and other court personnel in the foreign judicial system familiar to the LEP individual and the similarities and differences in the roles played by their American equivalents so as to be able to convey to the LEP individual a clear understanding of those roles.

• 1Cassandra L. McKeown & Michael G. Miller, Say What? South Dakota’s Unsettling Indifference to Linguistic Minorities in the Courtroom, 54 S.D.L. Rev. 33, 45 (2009).
• 2Id.
• 3Id.
• 4Id. at 41.
• 5Id. at 42.
• 6Id.
• 7 Id. at 43 (internal citations omitted).
• 8Id. at 48
• 9Id. at 49.

A fairly straightforward way to determine whether an interpreter is substantially competent is to apply the benchmarks of interpreter competency. The following indicators of professional competence should give the attorney a way to assess whether an objection is in order to protect the integrity of an LEP individual’s testimony, keeping in mind that no one is perfect and that interpretation is difficult, even under the best circumstances.1 Competent interpreters should:

• Understand and know when to employ accepted modes of court interpretation (i.e., simultaneous, and consecutive interpretation and sight translation) as well as legal terminology. 
• Accurately interpret without embellishment or omission, preserving language level and register.2 This includes providing simultaneous interpretation “of all open-court speeches, questions, answers, instructions, directions, and court rulings.” Interpretation of “a possible vulgar meaning” or of “[c]olloquial, slang, obscene or crude language, as well as sophisticated and erudite language” must be conveyed “in accordance with the usage of the speaker;” an interpreter “is not to tone down, improve or edit any words or statements.” Similarly, an interpreter must “not simplify or explain statements for a LEP or Deaf or Hard of Hearing person even when the interpreter believes that the person for whom she is interpreting is unable to understand the speaker’s language level. If necessary, the LEP or Deaf or Hard of Hearing person may request an explanation or simplification from the Court and/or judge.”3
• Make use of appropriate legal and bilingual dictionaries as needed. However, if the interpreter shows signs of not being able to accurately interpret, the interpreter is under an obligation to tell the court. Moreover, if there is no such disclosure, but the attorney determines that the interpretation is not accurate, the attorney should raise the issue immediately.
• Keep all information in confidence. This includes disclosures made by the LEP individual to another person through the court interpreter and any other information deemed confidential by the court. 
• Maintain an impartial attitude. This means not having unneeded contact with counsel, witnesses, or interested parties. This rule applies in and out of court. And, needless to say, an interpreter must not give legal advice of any kind. 
• Speak in an intelligible and firm voice. Interpreters should position themselves near the LEP individual or Hard of Hearing person in order to maintain appropriate contact that will facilitate the interpretation; they should not obstruct the view of counsel, the judge, or the jury. 

• 1These competency benchmarks are based on accepted interpreter responsibilities as set forth by the State of New York. They are illustrative here because they reflect commonly accepted practices. See N.Y. State Unified Ct. Sys., Interpreter Manual and Code of Ethics 7–10 (2018).
• 2“In linguistics, the register is defined as the way a speaker uses language differently in different circumstances. Think about the words you choose, your tone of voice, even your body language.” Richard Norquist, What Is Register in Linguistics? ThoughtCo (July 25, 2019)
• 3N.Y. State Unified Ct. Sys., supra, at 7.

The issue of the competence of the court interpreter normally relates to their actual performance during trial/hearings. The interpreter must be able to perform in a way that meets accepted benchmarks, that is, engage in best practices that ensure that the interpreter will be able to convey accurately what the LEP individual wishes to communicate in a court of law. 

Accuracy and all that it implies—fluency, cultural competence, register, etc.—is one of the most critical functions of the court interpreter. Inaccurate interpretations are prejudicial. They deny the LEP individual the very “voice” the interpreter is trusted to convey. The benchmarks set forth in the previous section represent standards against which an attorney may judge performance and object as necessary to prevent prejudice.

Certain deviations from these benchmarks such as mumbling instead of speaking clearly, offering personal opinions about the case or the party, or failing to interpret in consecutive mode are easily ascertainable. However, those related to the accuracy of the interpretation may not be unless the attorney is fully bilingual in the language spoken by the LEP individual. It is strongly suggested that an attorney concerned about the accuracy of the interpretation retain an additional qualified interpreter to monitor the court interpreter’s performance. If this proves to be impossible, an alternative might be to ask the court to allow an audio recording of those portions of the proceeding that involve the court interpreter and make the recordings part of the record. It is unclear whether a court would allow this, but, if there is a possibility of prejudice, it may be prudent to make the request and thereby create a record that will allow for appropriate appellate review.1

• 1Appellate review of the interpreter issue would be available either way – if the audio recording is available, then an expert linguist can opine as to the accuracy of the interpretation if that is the error; if the audio is not allowed, the issue might be whether the recording should have been allowed under the particular circumstances of the request.