Effective Use of Interpreters

1. Effective Use of Interpreters NAUIABConference Mystic, CT ● June 14, 2010 Dorothy Johnson, Deputy General Counsel, State of Florida Unemployment Appeals Commission Susan Nofi-Bendici, Deputy Director, New Haven Legal Assistance Association, Inc.

2. Whywe use interpreters Due Process • ‘The fundamental requisite of due process of law is the opportunity to be heard’. . . “The hearing must be ‘at a meaningful time and in a meaningful manner.” Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011 (1970).

3. Why we use interpreters Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency • Federal agencies and programs must examine the services they provide, identify any need for services to those with limited English proficiency (LEP), and develop and implement a system to provide those services so LEP persons can have meaningful access to them.

4. Why we use interpreters Necessity • In 2005, 23.2 million U.S. residents (8.65% of the population) spoke English less than very well, a 246% increase from the 1990 census • Quality testimony is vital to a developed record and well-supported findings of fact

5. When You Use an Interpreter • What do you expect of them? What do you want them to do for you? • What knowledge, skills, and abilities do you expect them to have in order to meet your expectations? What qualifications should they have? • How do you know when the person has these qualifications? • How do you effectively use the interpreter in the hearing? • How do you judge credibility when an interpreter is used?

6. The Job When you use interpreters, what do you expect of them? What do you want them to do for you?

7. The Job To render everything said in court in the source language into the target language: 1. Accurately, without any distortion of meaning 2. Without omissions 3. Without additions 4. Without any changes in style or "register" 5. With as little delay or interference in the routine pace of court proceedings as possible!!

8. Legalese and Elliptical Language • "To violate a defendant"(8 syllables) • Correct Spanish: "Acusar de una infraccion a un acusado bajo libertad condicional.“ (24 syllables) • Verbatim Spanish: (incorrect) "Violar a un acusado.“ ("Rape a defendant")

9. Passive/Active Voice "Golpearon a la puerta." Incorrect: "They knocked at the door." Correct: "There was a knock at the door.” "Me dijeron eso." Incorrect: "They told me that." Correct: "I was told that.”

10. Skills and Abilities What knowledge, skills, and abilities do you expect the interpreter to have in order to meet your expectations? What qualifications should they have?

11. Cognitive and Motor Skills • 1. Listen • 2. Comprehend • 3. Abstract the message from the words and word order • 4. Store ideas -- Memory • 5. Search for the conceptual and semantic matches • 6. Reconstruct the message in the other language • 7. WHILE . . . Speaking and listening for the next chunk of language to process • 8. WHILE . . . Monitoring their own output

12. Knowledge • Know two languages, or be bilingual. • Function in both languages not one language at a time. • Must know “semantic matches” for expressions or idioms between the two languages.

13. Simultaneous Interpretation Ability • In simultaneous interpretation, the interpreter immediately repeats (interprets) what the speaker says. • The speaker may not pause or stop between phrases or sentences. The speaker must maintain an even pace. • The Interpreter Must: • The interpreter must listen in one language. • Translate and talk to the party in the other language at the same time.

14. Consecutive Interpreting Ability • In consecutive interpretation, the speaker completes an utterance before the interpreter speaks. • The interpreter must: • listen while the speaker talks, • remember it all, and • then repeat it back.

15. Determining Qualifications How do you know when the person has these qualifications?

16. Certification • A standardized process for assessing whether a court interpreter is sufficiently proficient to provide competent court interpreting services. • This generally involves a test of competency.

17. Certification Tests • Tests should have three parts: 1. Sight translation of documents: a. Foreign language into English b. English into foreign language 2. Consecutive interpretation of testimony 3. Simultaneous interpretation of an attorney's opening or closing argument to the jury. All are simulations of what interpreters do in court

18. Certification Tests • The test should evaluate: • Grammar and syntax • False cognates/interference • General vocabulary • Technical vocabulary ("legal," "court") • Idioms and expressions • Conservation of style • Numbers, names, dates (accuracy) • Modifiers and emphasis • Position (words likely to be left out)

19. Examples of Test Errors Text to be interpreted Interpretation Now, there were no injuries Now, there were no in this accident. insults in this accident. . . . but thought nothing of it. . …but did not think about it at all. It had to be dark. It was dark. …continuing to harass him. continuing to offend him.

20. Without Certification • Agency Interpreters • Initial agency test. • On the job training. • On the job continuing education and periodic testing.

21. Without Certification When Relying on Contract Interpreters You want to Know: • Information on how and when the Interpreters language fluency was verified/tested; • Identification of the language(s) the individual is qualified to interpret; • Level of competency including score on tests or rating assigned; • Minimum of three years of professional experience including contracting with state, local, or federal government entities; • Proof of attending ethics and multicultural workshops and other continuing education that includes training, in the applicable language including accuracy in using a wide range of vocabulary, language skills that include grammar, pronunciation, etymology, and improvisation techniques; • Vendor interpreter program is headed by a certified telephonic interpreter instructor by Department of Consumer Affairs Bureau for Private Postsecondary and Vocational Education or equivalent.   

22. EFFECTIVELY USING AN INTERPRETER How do you effectively use the interpreter in the hearing?

23. Determine the Need • Use questions that can not be answered yes or no. • Please tell the court your name. • How did you learn English? • Please tell me about your country. • Tell me more about your country. • What is the highest grade you completed in school? • Describe some of the things you see in this courtroom. • Tell the court the best way to communicate with you and to let you know what is being said.

24. VOIR DIRE OF INTERPRETER • What training or credentials do you have as an interpreter? • What is your native language? • How did you learn your foreign language skills? • Are you familiar with the National Association for Judiciary Interpreters and Translators’ “Code of Ethics and Professional Responsibility”? What are its main points? • How many times have you interpreted in court? • Describe your familiarity with legal terminology. • What types of cases have you interpreted? • Are you related to or close friends with anyone in this case? • Do you understand you are to be a neutral party who is here to facilitate communication and that you should not offer advice or interject your opinion into these proceedings?

25. SAMPLE INTERPRETER OATHS • Do you solemnly swear or affirm you will interpret accurately, completely, and impartially, using your best skill and judgment in accordance with the standards prescribed by law and follow all official guidelines established by this court for legal interpreting or translating, and discharge all of the solemn duties and obligations of legal interpretation and translation?

26. SAMPLE INTERPRETER OATH Do you solemnly swear or affirm that you will truthfully and accurately translate all questions, testimony, and proceedings at this hearing, to the best of your ability?

27. SAMPLE INTERPRETER OATH • Do you solemnly swear or solemnly and sincerely affirm, as the case may be, that you will interpret accurately the oath to be administered to the witness and all questions that the witness may be asked under direction of the court in a language the witness can understand and speak; that you will interpret accurately the answers of the witness in English; and that you will make all interpretations to the best of your skill and judgment; so help you God or upon penalty of perjury.

28. Before the Hearing Starts • Allow the interpreter to converse briefly with the non-English speaker. • Ask the non-English speaker if the speaker is able to understand and communicate through the interpreter. • Allow the interpreter to view court files prior to the proceedings.

29. Explain the Use of the Interpreter • The court interpreter is a neutral party who is here only to interpret the proceedings and facilitate communication. • The interpreter will interpret only what is said without adding, omitting or summarizing anything. • The interpreter will say in English everything the non-English speaker states in his or her language and will say in _______ language everything said in English. • Do not say anything you do not want everyone to hear. • 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, then tell me. • If you need a question or answer repeated, please tell me. • Wait until the entire statement has been interpreted before you answer.

30. Instructions from the Judge • Instruct all participants to speak loudly and clearly and allow only one person to speak at a time. • Participants must give the interpreter time to interpret between sentences and keep statements short. • Participants should speak directly to the party or witness, not to the interpreter. Do not ask the interpreter to explain or restate anything said by the party. Always direct the interpreter to interpret in the first person in order for the record to be accurate.

31. The Judge Should Remember • The interpreter must convey all questions, answers and courtroom dialogue. Advise the interpreter to notify the court when breaks are needed. If the proceeding will last longer than two hours, require the presence of two interpreters who can switch off as needed. • Court proceedings can be confusing and intimidating for a non-English speaker since other countries’ legal systems and concepts often vary from those of the United States. • Address any objection to quality or content of translation. • Allow the objecting party to fully explain the objection before ruling on its validity. • If a party establishes that the translation is significantly faulty, it may be necessary to request a different translator.

32. Credibility How do you assess credibility through an interpreter?

33. Assessing Credibility Through an Interpreter What role does demeanor play in evaluating interpreted testimony? • Garcia v. Florida Unemployment Appeals Commission: Court remands, orders that LEP claimant be provided with Spanish-language materials regarding appeal procedures and rights/obligations of claimant.

34. Assessing Credibility Through an Interpreter What role does demeanor play in evaluating interpreted testimony? • Garcia v. Florida Unemployment Appeals Commission: Court emphasized right to request in-person hearing, “Because the hearing turned on credibility issues, this was an important right and one she may well elect to exercise on remand.”

35. Assessing Credibility Through an Interpreter What role does demeanor play in evaluating interpreted testimony? • Apouviepseakoda v. Gonzalez: 7th Cir. defers to Immigration Judge’s credibility determination, noting “The IJ spent 6 hours in a hearing room, face to face, with Ms. Apouviepseakoda.” • Dissent questions whether observing interpreted testimony results in better credibility call.

36. Assessing Credibility Through an Interpreter What role does demeanor play in evaluating interpreted testimony? • “Even if so in general, it cannot be so when the witness is a foreigner testifying though an interpreter, especially if the judge cannot even hear the foreigner, but only the interpreter. Reading the facial expressions or body language of a foreigner for signs of lying is not a skill that either we or Judge Brahos possess.” – Posner, J.

37. Assessing Credibility Through an Interpreter Speaking “style”: lost in translation? • How faithfully do court interpreters render the style of non-English speaking witnesses’ testimonies? A data-based study of Spanish English bilingual proceedings. Sandra Hale, University of Western Sydney  2002

38. Assessing Credibility Through an Interpreter Speaking “style”: lost in translation? • Less credibility given to witnesses with a “powerless speech style” – marked by hedges, hesitations, rising intonation and intensifiers • Interpreters faithfully interpreted content, but not style

39. Assessing Credibility Through an Interpreter Speaking “style”: lost in translation? • “Powerless” speech features rarely conveyed as part of interpretation • Features in the interpreted renditions were the interpreter’s personal style of speech, or were hesitations preceding difficult translations

40. Assessing Credibility Through an Interpreter Speaking “style”: lost in translation? • Sometimes interpretation style was detrimental to credibility determination; in some cases interpreter improved testimony by eliminating grammatical errors and hesitations. • The takeaway? When assessing the credibility of interpreted testimony, take care not to rely on speech “style”

41. Assessing Credibility Through an Interpreter Strategies for Assessing Credibility Without Relying on Demeanor/Speech style • From Assessing Credibility in Labor Arbitration; Lareau, Margaret A.; Sacks, Howard R., 5 Lab. Law. 151 (1989)

42. Assessing Credibility Through an Interpreter Strategies for Assessing Credibility Without Relying on Demeanor/Speech style • Look for inconsistencies: • Within the testimony • Between the witness’ present and past accounts • Between the testimony and facts clearly established by other witnesses or documentary evidence

43. Assessing Credibility Through an Interpreter Strategies for Assessing Credibility Without Relying on Demeanor/Speech style • Weigh carefully the significance of witness error (i.e. be cautious in throwing out all of a witness’ testimony due to an inadvertent error in part of it) • A witness’ admitting an unfavorable fact or detail can be an indicia of honesty

44. Assessing Credibility Through an Interpreter Strategies for Assessing Credibility Without Relying on Demeanor/Speech style • If appropriate, try to obtain additional witnesses/documents • If appropriate, resolve using burden of proof without resorting to credibility determination

45. Florida Translation of Agency Documents • The Agency UC Web page is in Spanish • Some written information is provided in Spanish and Creole • By end of year base forms will be on the Web in Spanish and Creole. • Claimant specific text will not be provided in Spanish or Creole.

46. Thank You • Information for this presentation was drawn from: • The National Center for State Courts • WHITE PAPER ON COURT INTERPRETATION: FUNDAMENTAL TO ACCESS TO JUSTICE by Conference of State Court Administrators. • Bench Card for Judges by The Supreme Court of Ohio • National Association of Judiciary Interpreters and Translators • Code of Ethics and Professional Responsibilities