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The Bilingual Courtroom
Court Interpreters in the Judicial Process With a New Chapter
By Susan Berk-Seligson
The University of Chicago PressCopyright © 2002 The University of Chicago
All rights reserved.
The Bilingual Courtroom
Since the late 1960s, with America's awakening sensitivity to the social needs and rights of linguistic minorities, there has been a veritable explosion in the use of foreign language interpreting in American courtrooms. The climate engendered by the civil rights movement of the 1960s certainly laid the foundation for the growing sensitivity to linguistic minorities. But one seminal event can be seen as the driving force behind the current growing trend toward greater use of court interpreting in American courtrooms: the enactment in 1978 of Public Law No. 95–539, the federal Court Interpreters Act. Although it is restricted to the jurisdiction of federal courts, it has served to stimulate parallel measures in state and municipal courts. Thus, through the precedent of federal legislation, courts of lower level jurisdiction are increasingly assigning foreign-language interpreters to non-English-speaking defendants, litigants, and witnesses. This change in judicial policy comes as a result of a now well-established recognition by the courts that to deny the non- English speaking and the hearing-impaired the services of a court-appointed interpreter is to deny them their constitutionally guaranteed right to a fair trial.
For judges, attorneys, defendants, litigants, and witnesses alike, the presence of a foreign language interpreter transforms normal courtroom proceedings into bilingual events. This book will show how the courtroom is transformed in the presence of the court interpreter, and how these transformations have an impact on judicial proceedings. The study will present findings based on seven months of ethnographic observation and tape-recording of interpreted judicial proceedings in three tiers of court: federal, state, and municipal. Drawing on 114 hours of taped recordings, this book will show that in a number of ways—some subtle, others quite dramatic and obvious—the nature of judicial proceedings is altered when these proceedings are mediated through the mechanism of a foreign language interpreter. Specifically, it will be shown that interpreting is a highly complicated process, and that the role of the interpreter within the social structure of the courtroom poses its own problematic. Whereas court personnel assume that the interpreter is nothing short of a machine that converts the English speech of attorneys, judges, and English-speaking witnesses into the mother tongue of the non-English-speaking defendant or witness, and the foreign language testimony of non-English speaking witnesses into English for the benefit of the court, the output of that machine is by no means perfect, nor can it ever be, because of the problems inherent in the interpreting process. At best, it can be excellent; at worst, a gross distortion of what has been said.
The problematical role of the court interpreter is not limited to the difficulties inherent in the interpreting process, but rests on the more fundamental contradiction between how the interpreter defines her role and how other court personnel and court clients perceive it. Her very social status in the courtroom is perceived differently by different elements in the social structure of the courthouse. It will be shown that many of the problems regularly encountered by the court interpreter are a result of a misunderstanding of her role not only by clients (defendants, litigants, and witnesses), but also by lawyers and judges.
While one major source of problems commonly found in interpreted judicial proceedings stems from contradictory perceptions of the interpreter's role, another important source of difficulty is the general lack of awareness on the part of most interpreters of a field of linguistics called "pragmatics." Professional interpreters overwhelmingly view vocabulary as their number one linguistic problem. Problems of syntax and pragmatic scope are given slight attention, if any at all. Yet observation of interpreters at work reveals that inattention to pragmatic aspects of language results in a skewing of a speaker's intended meaning: an interpreter can make the tone of a witness's testimony or an attorney's questions more harsh and antagonistic than it was when it was originally uttered, or, conversely, she can make its effect softer, more cooperative, and less challenging than the original. For the most part, these changes are made unconsciously. On the whole, when interpreters make such fine alterations in the conversion of one language to another they seem completely unaware of the important impact that these alterations can have on judges and jurors. On the other hand, an interpreter who has either unconscious or conscious biases can take full advantage of such linguistic mechanisms to suit her own purposes, and where there is a conflict of interest but it is not perceived as such by court personnel, the interpreter's interpretations can and do serve to slant what a speaker is trying to say. Thus, it will be shown in chapter 6 that an interpreter has the power to make a witness's testimony cast more (or less) blame than it did in the source language—that is, the language in which it was originally uttered, and, alternatively, she can remove from the testimony any blame-laying strategies it may have contained. Moreover, an interpreter can make an attorney look more polite and less aggressive to a witness, and a witness more, or alternatively, less cooperative to an attorney. Finally, it will be shown that interpreters often introduce an element of coercion into the examination process when they interpret for witnesses and defendants.
Spanish in the Courtroom
Court interpreting is currently being conducted in federal, state, and municipal courts in a variety of languages (see Tables 1.1 and 1.2). As the interpreter logbooks of federal courthouses and state courthouses show, the need for interpreting arises in a multitude of languages. These range from what are historically the more commonplace American immigrant mother tongues, such as Spanish, Italian, German, and Polish (i.e., languages brought to the United States by immigrants from Europe and Latin America), to what interpreters' organizations call "exotic languages"—that is, the languages of Asia, Africa, the Middle East, and the languages spoken by Amerindian groups. In addition, a great deal of court interpreting is carried out in various sign language systems for the benefit of hearing-impaired defendants and witnesses. Whereas the preponderance of such interpreting is done in American Sign Language, often the need arises for foreign sign language systems.
Table 1.1, which is drawn from the logbooks of two southwestern courthouses, a northeastern metropolitan courthouse, and a mid-western metropolitan courthouse, and Table 1.2, a summary of data derived from all federal U.S. district courts, both point clearly to the same conclusion: Spanish is the language of most frequent use in American court-interpreted proceedings. This is not unexpected if one considers the fact that Spanish is the most commonly spoken non-English mother tongue used in the United States.
The importance of Spanish in the American courtroom becomes obvious if one looks at the log of one U.S. district court (i.e., a federal court) located in a northeastern metropolis. As Table 1.2 shows, during the course of 1987 there were 2,636 court appearances of interpreters for Spanish interpreting alone. That figure should be compared with the total of 607 court appearances for all the other twenty-six languages that required interpreting. In other words, there were nearly 4.5 times as many Spanish interpreted proceedings as there were interpreted proceedings for all other foreign languages combined. The particular courthouse from which these data are derived is located in a city that has a highly varied non-English-speaking population.
Spanish is the foreign language of most widespread use in the United States today, and can be expected to remain in this position of dominance for the foreseeable future (Bills 1987; Fishman 1966). Coupled with the evidence found in Tables 1.1 and 1.2, this indicates that if any interpreting situation needs to be studied in the American courtroom, it is the one involving Spanish. For this reason, this study bases its analysis exclusively on observations of Spanish/English interpreted judicial proceedings. This is not to say that it is not just as important to study what goes on in court interpreting situations involving other languages: court interpreting for the hearing-impaired and for speakers of other foreign languages is also worthy of study. However, studies of Spanish interpreting clearly cannot be postponed, for tens of thousands of appearances of Spanish language interpreters are being made annually in American courtrooms, while virtually nothing is known about what actually goes on when judicial proceedings are conducted with the aid of an interpreter.
Duties of the Court Interpreter
The Court Interpreters Act does not prescribe specific judicial proceedings at which interpreters must be present, yet a look at the annual interpreter log of two federal district courts reveals a virtually identical concordance of tasks performed (see Table 1.3). More striking still is the fact that state courts make use of their interpreters in much the same way, despite the fact that they are not subject to the jurisdiction of the federal act.
A look at the interpreter's log of a federal district court located in an eastern metropolis, a federal district court located in a southwestern medium-sized city, and a superior court (i.e., criminal trial court) of a large southwestern city, reveals that in all three courts interpreters are on duty for basically the same range of procedures: initial appearances, hearings related to the setting of bail bond, preliminary hearings, pretrial and in-trial motions, pleas and changes of plea, sentencings, trials, and probation department recommendations. Where federal district courts differ from one another and from superior courts is in the use of court-appointed interpreters for attorney/client conferences. As can be seen in Table 1.3, below, one federal district court uses its interpreters extensively for attorney/client conferences, whereas the other federal district court does so on rare occasions. This may simply be a function of the high availability of bilingual Spanish-speaking attorneys in the jurisdiction of the latter court: every case requiring a Spanish interpreter that was observed in this particular court utilized a Spanish-speaking defense attorney. Thus, for interviews or conferences with defendants, such attorneys would not have needed the services of an interpreter. In the other federal district court, however, not a single case observed during the fieldwork involved a Spanish-speaking defense attorney. In the case of the superior court, a clear, written policy stipulates that court-appointed interpreters are made available to all court-appointed defense attorneys, prosecutors, probation officers, court-appointed psychiatrists and investigators for interviews with a defendant in preparation for trial or sentencing, but that privately retained attorneys in both civil and criminal matters must contract with a private interpreter for attorney/client interviews. This explicit, official policy of the courthouse may account for the high number (557) of interpreter-assisted attorney/client interviews.
An additional difference in interpreter task-load between one court and another has to do with the structure and legal purview of federal courts versus those of state courts. For one thing, superior courts can subsume under their jurisdiction juvenile courts. Thus, in some state court systems, court-appointed interpreters working in superior courts are responsible for juvenile cases. The log of the superior court in question shows that during a one-month period court interpreters were present at advisory hearings, adjudication hearings, disposition hearings, and dependency review hearings in juvenile court. Furthermore, because of the role of justice of the peace (JP) courts in carrying out preliminary hearings on persons who have been arraigned in superior court, superior courts send their interpreters to JP courts for such hearings. The superior court log in question shows that court interpreters are sent to JP court not only for preliminary hearings, but also for pretrial disposition hearings, arraignments, and trials, including civil trials.
Finally, superior court interpreters do a great deal more interpreting in civil matters than do federal court interpreters, as Table 1.3 demonstrates. Superior court interpreters appear not only in cases involving litigation, but also in matters associated with domestic relations: default dissolutions, orders to show cause, conciliation court sessions, and arbitration hearings. Orders to show cause why family support is not being met is one of the more common types of domestic relations proceedings at which superior court interpreters will appear.
Excerpted from The Bilingual Courtroom by Susan Berk-Seligson. Copyright © 2002 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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