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.