Posted by: sbilingual | October 8, 2012

The Court Interpreter as Guarantor of Defendant Rights

The role of the court interpreter is a function of the legal system within which that interpreter operates. Thus, the practice of judiciary interpreters in the United States, where the common-law tradition prevails, is heavily influenced by the adversarial, oral, and public nature of the proceedings and the presence of the jury. Interpreters in European courts, where the civil-law tradition is more prevalent, are subject to different expectations. The legal reforms now taking place in European countries as a result of the demise of the Soviet Union and the expansion of the European Union are blurring some of the distinctions between common law and civil law, however. Consequently, the role of the court interpreter must be redefined. This paper examines the similarities and distinctions between the U.S. and European justice systems with respect to the role of the judiciary interpreter, identifies ways in which interpreters guarantee due process for criminal defendants, and concludes with some recommendations for European court interpreters on the basis of the experience of their colleagues in the United States and elsewhere.

The Role of the Interpreter in the U.S. Courts

The function of the interpreter in U.S. criminal proceedings has been examined extensively elsewhere (González et al., 1991; Berk-Seligson, 1990; Mikkelson, 1993; Mikkelson, 1998), and need not be explored further here. As these authors have shown, the adversarial, oral trial in which attorneys for opposing sides attempt to persuade a jury of laypersons to reach a verdict in their client’s favor results in a “staged performance” in which the interpreter “becomes another member of the cast of players, and the attorneys attempt to manipulate the interpretation as part of their carefully orchestrated production” (Mikkelson, 1998). The jurors’ role is to evaluate the evidence presented in light of the law, which is explained to them by the judge, and reach a verdict. As Berk-Seligson (1990) has pointed out, the interpreter has a great deal of influence on the jury’s perception of a witness whose testimony must be interpreted for them.

The authors cited above have also illustrated how important interpreters are in guaranteeing the defendant’s right to due process by ensuring his “presence” when his case is heard by providing a complete simultaneous interpretation of everything that is said in court. The defendant’s right to be present at all stages of the proceedings has long been recognized in U.S. case law (Lewis v. United States, 1892), and the notion of “linguistic presence” (i.e., the defendant cannot be present at his trial if he does not understand the language of the proceedings) was established in Arizona v. Natividad (1974). A California case, People v. Chavez (1981), declared that appointing a bilingual defense attorney is not enough to guarantee a defendant’s right to interpretation. González et al. (1991) provide a detailed discussion of the evolution of attitudes toward language rights in U.S. court decisions.

In recent decades, public attitudes toward individuals accused of crimes have undergone major shifts. The decisions of the Supreme Court under Chief Justice Earl Warren (who served on the court from 1953 to 1969), many of which expanded the rights of criminal defendants, are still having repercussions on legislation, court decisions, and public debate (Abraham, 1992). Now the pendulum is swinging away from defendants’ rights and toward those of crime victims, but most of the reforms instituted in the 1960s and 1970s remain intact. Thus, the highly publicized anti-immigrant measures taken by many states have not yet had a major impact on the provision of interpreting services in the courts (unlike public education institutions and social service agencies), although the prevailing attitude has made state legislatures reluctant to allocate the funding the courts require for adequate interpretation services.

III. Court Interpreting in Europe

Europe has also undergone significant legal reforms since the 1960s. The general features of the civil-law system remain, but there has been an increasing emphasis on ensuring defendants’ rights and opening up the judiciary to public scrutiny. For example, the European Court of Human Rights noted an “increased sensitivity of the public to the fair administration of justice” in its ruling in Borgers v. Belgium (1991), when it found that procedural equality (the so-called “equality of arms” principle) was absolutely essential to a fair trial (Jacobs and White, 1996, p. 125).

Merryman and Clark (1978) discuss the major features of the common-law and civil-law systems, and note the following about civil trials (though they point out that it applies to criminal proceedings as well):

The existence of a jury has profoundly affected the form of civil proceedings in the common-law tradition. The necessity to bring together a number of ordinary citizens to hear the testimony of witnesses and observe the evidence, to find the facts, and to apply the facts to the law under instructions from a judge, has pushed the trial into the shape of an event. … In the civil law nations, where there is no tradition of civil trial by jury, an entirely different approach has developed. There is no such thing as a trial in our sense; there is no single, concentrated event. The typical civil proceeding in a civil law country is actually a series of isolated meetings of and written communications between counsel and the judge. (pp. 652-53)

The authors identify three elements that characterize common-law proceedings, and that have not traditionally been present in civil-law countries: 1) concentration (meaning that all evidence is presented in a single event, the trial), 2) immediacy (the judge who makes the final decision in the case actually sees and hears evidence first-hand, rather than reading reports and affidavits), and 3) orality (live witness testimony in public proceedings). At the time of their writing in 1978, however, they did detect a trend toward more of each of these elements in civil-law proceedings. More recent writings about court proceedings in general, and interpreted proceedings in particular, confirm this assertion (The Swedish Institute, 1992; German Information Center, 1994; Driesen, 1988). Concentration, immediacy, and orality have a direct impact on the functions of the interpreter. Therefore, these aspects of legal procedure should be examined in more detail with a view to elucidating the changing role of court interpreters in the courts of Europe.

A. Concentration

The fact that the trial in the common-law system is a single event where all facts are presented to the jury and the verdict comes as the pièce de résistance puts a great deal of pressure on all parties to put on their best performance before the jury. Consequently, preparing a witness for testimony is much like rehearsing for a play. In contrast, the piecemeal submission of evidence “in a series of isolated meetings of and written communications between counsel and the judge” described by Merryman and Clark (1978, pp. 652-653) in the civil-law system means that all players, including the interpreter, have much more of an opportunity to prepare for their appearances in court. It is hoped that as proceedings in European courts become more concentrated, interpreters will not be subject to the pressures their common-law counterparts must endure, but will still be given adequate opportunities to prepare for their interpreting assignments.

B. Immediacy

Merryman and Clark (1978) emphasize that the common-law trial

… is permeated by a moralistic flavor. The parties play out their roles before the father-judge and the neighbor-jury. In the civil law tradition, by way of contrast, a judge is an important public servant, but he lacks anything like the measure of authority and paternal character possessed by the common law judge … The civil law is more thoroughly secularized, less moralistic, and more immune to the ethic of the time and place. (p. 660)

If the trial is viewed as prolonged process in which documents are submitted to a public employee, rather than a single session in which all facts must be presented at once to a powerful decision-maker, once again there is less pressure on the parties in their court appearances. This is particularly true of the interpreter, since much more of the information to which the defendant must be privy is in written form, and is thus translated or sight-translated rather than being interpreted spontaneously. If proceedings are characterized by increasing immediacy in European courts, steps should be taken to ensure that interpreters are given the opportunity to prepare adequately, and that the proceedings are conducted in a way that does not hinder the interpretation process.

C. Orality

In common-law trials, all evidence is presented to the jury through oral evidence (witnesses’ responses to questions by the attorneys for the opposing sides) or physical evidence (exhibits such as documents, weapons, maps, photographs, and the like). As noted above, the trial is the culmination of all previous proceedings, and live testimony subject to cross-examination is given more weight than any previous statements made by witnesses. Lawyers and judges pay a great deal of attention to “preserving the record,” that is, getting an accurate verbatim transcript that will be relied upon in case of an appeal. Interpreters are thus instructed to be mindful at all times of the fact that their words are being recorded verbatim by the court reporter.

In traditional civil-law proceedings, by contrast, by the time a case comes to trial, many issues have already been resolved by the examining magistrate, and witnesses are only questioned about matters that remain unresolved. According to Merryman and Clark (1978), witnesses are allowed to give narratives, uninterrupted by objections from the attorneys. No verbatim record is made of testimony; the judge occasionally interrupts to dictate a summary to the court clerk, who takes it down in shorthand.

Unlike common-law trials, in which attorneys question witnesses to bring out facts as they want the jury to hear them, in civil-law proceedings, the judge conducts most of the examination of witnesses. The prosecution and the defense each submit questions that they would like the judge to ask, and each has an opportunity to see the other’s questions in advance. Merryman and Clark (1978) note:

This profoundly affects the psychological positions of questioning lawyer and responding witness at the hearing, and the fact that any questions the lawyer asks must pass through the judge at the hearing reinforces this effect. The familiar pattern of immediate, oral, rapid examination and cross-examination of witnesses in a common law trial is not present in the civil law proceeding. (pp. 655-656)

A more recent publication on the German courts also notes that the “questioning does not reach the intensity usual in American courts” (German Information Center, 1994, p. 3). The summary of the Kamasinski case included in the decision handed down by the European Court of Human Rights (Kamasinski Judgment, 1989) corroborates the assertion that the questioning takes place at a more measured pace, reporting that in the proceedings in an Austrian court,

The procedure followed was that the investigating judge put a question or a series of questions in German to the applicant through the interpreter and the applicant replied in English through the interpreter. The judge then had the typist record a summary of the applicant’s answers which he considered relevant. (p. 4)

Interpreters in common-law countries often complain about inadequate opportunities to prepare for interpreting assignments and the difficulties inherent in the emotionally-charged atmosphere of the typical trial (Mikkelson, 1993). From the interpreter’s standpoint, therefore, the lack of spontaneity in witness testimony in civil-law proceedings is advantageous, provided that the interpreter, too, is given an opportunity to see the questions in advance. Merryman and Clark (1978) also note that attorneys in civil-law trials are not allowed to object to questions or answers during the testimony, which makes for fewer disruptions and enables the interpreter to concentrate better on the task at hand. Hopefully, the trend toward orality in European courts will not detract from interpreters’ ability to perform their jobs adequately.

D. Right to an Interpreter

Virtually all European countries guarantee the right to an interpreter for defendants who do not speak the language of the proceedings. Indeed, the Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by the Council of Europe in 1950, guarantees in Article 6, among other things, 1) that the defendant be present in person when the case is heard in court, 2) that the evidence be heard by an “impartial tribunal,” and 3) that the defendant be informed of the charges “in a language which he understands” and to “have the free assistance of an interpreter if he cannot understand or speak the language used in the court” (Jacobs and White, 1996, pp. 122-123).

The real crux of the matter is how those interpretation services are provided. There is quite a difference between a simultaneous interpretation of the entire proceedings and a consecutive summary interpretation of selected parts of the proceedings. Simultaneous interpretation enables the accused to participate actively in his defense by listening to all evidence as it comes in and conferring with counsel when necessary. Consecutive summary interpretation relegates the defendant to a more passive role, merely watching the events, often without understanding a word of what is being said, and waiting for the attorney to explain afterwards what happened.

The passive role of the defendant is apparently accepted in many countries, to the extent that he may not even appear in court when his case is heard. Gomien et al. (1996) report a case heard by the European Court of Human Rights (Colozza Judgment, 1985), in which a defendant had been tried in absentia. While the court found that the accused “is entitled to take part in the hearings” and “it is difficult to see how he could exercise [his Article 6] rights without being present,” it was noted that “under Dutch law an accused is not usually under an obligation to attend his trial” (Gomien et al., 1996, pp.191, 193).

Kabelska (1990) has done a thorough search of case law on the right to an interpreter under the European Convention on Human Rights, and has concluded that there is no requirement that the entire court file be translated into the defendant’s language, or that a simultaneous interpretation of the proceedings be provided. Whereas in many countries it is the practice to provide such an interpretation, assuming there are interpreters available in the appropriate language combination who are capable of performing simultaneous interpretation, in other countries a consecutive summary interpretation is the norm. In the Kamasinski case (1989), for example, the European Court of Human Rights found that the Austrian court’s appointment of a bilingual defense attorney and the presence of a registered interpreter in court adequately met the standards set forth in Article 6:

27. A registered interpreter was present, sitting next to the applicant’s defence counsel to the left of the judges’ bench, while the applicant was sitting at a distance of about 6 to 7 metres from his defence counsel facing the bench.

The record of the trial states that an interpreter attended but, in accordance with the usual practice, does not specify which of the statements made during the trial were interpreted or the extent to which this was done. It is uncontested that questions put to prosecution witnesses by the court and the public prosecutor were not interpreted … (p. 9)

This would appear to violate the “equality of arms” principle enshrined in the European Convention on Human Rights, whereby each party must have the opportunity to present its case, and neither party should enjoy a substantial advantage over the other (Gomien et al., 1996). Surely the defendant’s inability to understand witness testimony is a substantial disadvantage.

Even in courts where simultaneous interpretation is expected, interpreters in some language combinations are incapable of performing the task, due to a lack of training (Driesen, 1988, 1989). Whether the interpreting is done simultaneously or consecutively, there is no question that the interpreter needs to have some understanding of the legal concepts contained in the statements to be interpreted. Moreover, the interpreter must fully understand the ethical obligation to remain impartial. Without specialized training, most bilingual individuals who attempt to interpret in court are unable to understand the complex legal language of the law and are not aware that it is improper for them to engage in conversation with the accused, to give advice, or to advocate for one side or the other.

Several writers have commented on the need for better training of court interpreters in Europe (Driesen, 1988, 1989; Colin and Morris, 1996; Nicholson and Martinsen, 1997; Gale, 1998). This is especially true of the so-called “minority languages,” that is, those spoken by indigenous or immigrant minority groups, and “languages of limited diffusion” (LLDs), the national languages of smaller countries. It may not be very difficult to find a qualified interpreter with a French-German or Italian-English combination, for example, but obtaining competent interpreting services in Vietnamese-German or Somali-Danish is quite another matter.

Nicholson and Martinsen (1997), writing about Denmark, describe a problem that plagues many countries, not just in Europe, but all over the world:

Recently, however, during the past five to ten years, Denmark has witnessed a marked increase in the number of immigrants arriving from many regions of the world. To be more specific, according to our sources, some of the languages which are in the greatest demand (and for which it is often most difficult to find qualified interpreters) include Farsi, Chinese, Arabic, Somali (as well as other African languages), Vietnamese and Finnish. … Languages including Spanish, French and English (for which there are many trained and/or authorized interpreters) are needed only rarely. Courtroom personnel generally express frustration at the fact that it is impossible for them to know just what the witness/defendant says when a less used language is involved. However, some did mention that they feel much more comfortable when interpretation services are required for an English-speaker because they can monitor the input and output. As a result, they have at least a chance of discovering incompetent interpreting. (pp. 265-266)

Thus, the due process rights of certain defendants are seriously jeopardized. It appears that only those who are fortunate enough to be arrested in countries where simultaneous interpretation of the proceedings is the norm, and where interpreters in the relevant language combination are trained to perform simultaneous interpretation and are familiar with the ethical obligations of court interpreters, are guaranteed the right to understand the proceedings and participate actively in their own defense. All other defendants are left wholly or partially in the dark.

IV. Remedies

What can be done to improve the quality of interpreting services provided in the courts of Europe, particularly in minority languages and LLDs? Perhaps the experience of the courts in the United States, which have faced similar problems, can provide some examples of measures that work (and of those that do not).

A. Testing and Certification

In the last two decades, a number of jurisdictions in the United States have adopted certification programs to ensure that the interpreters working in their courts are qualified. The first such program was instituted under the Federal Court Interpreters Act of 1978 (González et al, 1991). Prior to that, interpreters were selected on an ad hoc basis, often with disastrous consequences. According to Hewitt (1995),

  1. Optimally, all interpreters assigned to a court should be screened for their qualifications prior to sending them to a courtroom.
  2. Determination of interpreter qualifications should be conducted by individuals who are trained in language and interpreting proficiency screening techniques, and who are responsible for maintaining a roster or list of “approved” or “certified” interpreters.
  3. Formalized testing of language and interpreting proficiency (certification testing) is the best way to assess interpreter qualifications. (p. 89)

Establishing the appropriate criteria for interpreting proficiency is a difficult task. California, the first state to implement its own testing program, originally had a “flawed” testing instrument that set “unrealistically low” standards. In response to criticism, the exam was made more rigorous, which meant that interpreters tested in the early years were not measured by the same yardstick as those tested in later years (González, et al., 1991, pp. 541-543). California is still paying the price for its once lax standards for court interpreters, as many of the individuals certified at the beginning of the program are still working in the courts without subsequent retesting.

Most court systems in Europe have some means of screening the interpreters who perform services for them. The screening procedures range from formal examinations of interpreting skills and knowledge of the legal system to informal interviews about the prospective interpreter’s background and a cursory glance at the applicant’s C.V. (Driesen, 1988; Nicholson and Martinsen, 1997; Gale, 1998; Grau Mestre, 1998). Unfortunately, especially in the case of LLDs, courts the world over—the United States included—have not been broken of the habit of calling local restaurants that serve foreign cuisine in their efforts to recruit interpreters.

To be sure, designing and implementing valid and reliable tests of interpreting skills in multiple languages is an expensive process that requires expertise not found everywhere. In the United States, this problem has been addressed by the National Center for State Courts by forming a consortium of states to pool scarce resources and standardize procedures throughout the country (Gill and Hewitt, 1996; Hewitt, 1996; Hewitt and Lee, 1996). A similar effort could be beneficial in Europe.

B. Training

The interpreter certification programs launched in the United States ran into immediate problems, due to the low pass rate (González et al., 1991). Clearly, it is unrealistic to expect candidates to pass a rigorous exam without any training. Since the first interpreting exams were begun in the late 1970s, training programs have gradually been introduced around the country to meet this need, although they are still far too scarce (Hewitt, 1995). Most of the courses offered are for Spanish interpreting (since Spanish is by far the most frequently used language in interpreted proceedings in the United States), and even that is unavailable in vast stretches of the country.

The consortium of states formed by the National Center for State Courts has attempted to make up for the serious shortfall in training programs by offering weekend orientation workshops in states where testing is about to take place. Although these workshops are a “bandaid” approach at best, at least they inform prospective interpreters of 1) the standards of practice governing the court interpreting profession, 2) basic criminal procedure and English legal terms, and 3) resources for improving interpreting techniques (Mikkelson and Mintz, 1997). After attending these workshops, many interpreters have practiced on their own, following the guidelines presented in the workshop, and have passed the certification exams.

A number of entrepreneurs, including the author, have seized the opportunity to produce and market self-study materials for interpreters. In addition, weekend training seminars are being offered all over the country (Mikkelson, 1995). Again, most of the language-specific training is given in Spanish, but there are many generic courses in which interpreters of all languages can participate. This model should work well in Europe, with its myriad languages. As long as two students in a class share a language pair, effective training can be provided. Le Féal (1990) and Dixon (1996) describe multilingual training efforts, one at the ESIT in Paris, the other in Western Australia.

Generic practice materials can also be developed fairly easily. Although interpreting is performed in dozens of languages, the source language (for simultaneous interpreting of the proceedings) is always the official language of the country in question. Thus, mock court proceedings can be scripted and recorded in German, for example, which would allow all interpreters who work in German-language courtrooms to practice simultaneous interpreting into an unlimited number of languages.

C. Resource Management

Another measure that may enable court systems to better manage the meager resources they do have for LLDs is remote interpreting. To date, most such interpreting is done via voice links only, with conference telephone calls, but in the near future it is likely that videoconferencing will be available. The idea behind a remote-interpreting network is to eliminate distance as a barrier to providing interpretation services. Ample experience has been gained with telephone interpreting in Australia, the United States, and the United Kingdom (Ethnic Affairs Unit, 1995; Colin and Morris, 1996; Heh and Qian, 1997). Although remote interpreting has serious limitations and should be used with caution (Vidal, 1998), it is a practical means of meeting the need for interpreting services in a vast number of languages of limited diffusion. An added advantage of such a system is that it enables a few competent interpreters to handle all cases in a given language combination, regardless of their location. If they are able to make a decent living by interpreting full-time, they can afford to invest the necessary resources in training and continuing education to become skilled specialists.

Several court systems in the United States have offered court personnel seminars on working with interpreters. Such seminars acquaint judges and clerical staff with the nature of interpreting so that they can make appropriate assignments. For example, a recent session sponsored by the Hawaii Judiciary included the following agenda:

  1. Open Dialog: Hot Interpreter Issues
  2. Role of the Interpreter, Ethics and Responsibilities
  3. Interpreting Skills Exercise (English-English shadowing and memory exercises)
  4. Interpreter Needs
  5. Technology Demonstration (wireless simultaneous equipment)
  6. Hawaii’s Court Interpreter Program: Where Are We and Where Are We Going?
  7. Role of the Interpreter Coordinator
  8. Finding the Right Interpreter
  9. Effectively Managing Court Interpreter Services
  10. Coordinator Ethics and Responsibilities
  11. First Impressions: What Shapes Them? (cross-cultural awareness training) (Judiciary, State of Hawaii, 1997)

It is hoped that efforts such as this will help the courts meet their language needs efficiently and cost-effectively.

V. Conclusion

Gomien, et al. (1996) assert that Article 6 of the European Convention on Human Rights creates an “affirmative obligation” of states to

both establish and maintain the institutional infrastructure necessary for the proper administration of justice and promulgate and implement laws and regulations guaranteeing that the proceedings themselves are fair and equitable. (p. 157)

In practical terms, this means that governments and judiciaries must take steps to promote the training, testing, and certification of court interpreters, and to ensure proper working conditions for those interpreters so that litigants who do not speak the language of court proceedings can receive fair trials. This is a daunting task, but following the model of the highly successful conference interpreter training programs already developed in Europe, and drawing on the valuable experience garnered by court systems, professional associations, non-government organizations, and educational institutions around the world, the countries of Europe should be well positioned to accomplish this feat.

To find out how Bilingual Resources Group can support your interpretation, translation and bilingual staffing needs, please call 504-253-0364 or visit


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