It is useful to understand the role of and methodologies used by interpreters in the courtroom, as well as the judge’s role beyond simply appointing an interpreter. A judge unaware of the necessary skills and competencies required of an interpreter is likely to overlook serious due process breaches and ultimately become an unwitting participant in inequities triggered by poor or downright irresponsible interpretations. Attorneys must also be acquainted with the skills required in interpretation as it is their ethical duty to monitor the accuracy of the interpretation, the court’s handling of any objections in that regard, and other court actions which can render the interpreter ineffective.
Such actions include failing to address interpreter fatigue in long proceedings. Interpreter fatigue occurs after approximately two hours of interpretation; in lengthy proceedings, it is a best practice to employ multiple interpreters in order to give the initial interpreter a period of rest. In such cases, an attorney should be attuned to that need and the possibility of having to object when the lack of rest breaks prejudices the LEP client.
A different problem for interpreters relates to the appropriate protocols when using them:
| When courtroom workers ignore or forget procedures for interpreter mediated conversations, the interpreter’s ability to accurately interpret can be adversely affected. Attorneys and judges are often guilty of either failing to pause to allow the interpreter to give his rendition or waiting to pause until they have uttered a statement that is too long for the interpreter to retain and render.1 |
Speakers also sometimes address the interpreter directly, instead of the non-English speaker, thereby creating confusion. Judges should be aware of the need to intervene when there may be a likelihood of confusion because the interpretation protocol has been abandoned or purposely subverted.
Although judges should feel encouraged to conduct their own voir dire in instances where there is reason to believe interpretation will be deficient, it is not always the case that they will do so; many courts are still unclear as to the complexity of issues that can affect interpreter competency. Moreover, even a competent interpreter may work to the detriment of a non-English speaker if a linguistically accurate interpretation nevertheless fails to incorporate cultural context. This complicated question requires all the care and expertise only a judge can bring to bear and, of course, may necessitate the intervention by an LEP client’s attorney to direct the court’s attention to this problem. If it becomes apparent that the interpretation is suspect in some way, the attorney may wish to approach the bench to discuss the matter, and, if there is no satisfactory resolution, object on the record, challenging the interpretation—although, as with all objections, clear reasons must be articulated.2
- 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, 48 (2009).
- 2For further discussion, see Section 6.2.2 and Section 6.2.5. Challenging an interpretation will necessitate the use of information which would have to be provided by another interpreter or someone with fluency in the source language. This would mean that the attorney might consider employing a second interpreter to monitor the interpretation. Although not normally necessary, it might be a good practice in emotionally charged or controversial cases where prejudice is a real risk. An additional interpreter would also be essential in complying with a monolingual attorney’s ethical duty to competently represent an LEP individual by assisting with communications during court proceedings.