The literature on court interpreting can be divided into a number of themes. These include:
• the availability and provision of professional interpreters;
• the performance and challenges of practising interpreters;
• the training of interpreters;
• the ethical obligations and role of the interpreter.
It is generally agreed, that there are deficiencies in all of these areas.
The availability and provision of professional court interpreters
Kelly states that although unqualified interpreters continue to be used in US courtrooms, it is now rare and ‘court personnel recognize the need for trained interpreters’ (2000: 132). This is corroborated by Berk-Seligson (2000), who states that US courts are becoming increasingly aware of the consequences of poor interpreting which has led to a number of appeals.
The meaning of ‘qualified’ is difficult to ascertain when the term is used in relation to court interpreting. ‘Qualified’ can refer to interpreters adequately and formally trained through degree programmes, but also to interpreters who have been certified or accredited by examination alone. As compulsory pre-service training is still not a reality anywhere in the world, it can be safely assumed that the pool of competent, highly skilled and trained court interpreters continues to be low. Some languages are better equipped than others, a fact determined by the demand and the availability of training courses. Spanish, for example, is the language of highest demand in the United States, and therefore it is likely that there will be more trained, competent Spanish interpreters available than interpreters of other languages of lesser demand. The same can be said for other countries, referring to the languages relevant to each.
Whereas in some instances the poor provision of qualified preters is inevitably related to the limited availability of such inter-preters (Dobinson and Chiu, 2005), in other instances, the low level of interpreter service use may relate to issues of misunderstandings about the need for qualified interpreters and to misconceptions about the impact of their use. Carroll argues that ‘professional interpreting services are not always provided, and that the Court does not fully recognize the dangers inherent in using non-professional interpreters’
(1995: 67). He argues that there are four main possible reasons for such underutilisation:
1. judges believe that it is more difficult to assess the credibility of witnesses when they speak through an interpreter, preferring to hear someone speaking in limited broken English;
2. there is suspicion that those who speak through interpreters are devious and evasive and use the interpreter as a tactic;
3. that interpreters do not give a literal translation of the answers and therefore cannot be trusted;
4. that judges are capable of ascertaining the language skills of a defendant or accused and hence can determine when they need an interpreter.
He suggests that these misconceptions are shared by lawyers, who often advise their clients to avoid the use of interpreting services if they can make themselves understood with their limited knowledge of the language.
These objections and excuses, which are common across countries (cf. Morris, 1999), can be understood and justified in some instances, especially when courts have experienced the services of incompetent interpreters. It is true that it becomes more difficult to evaluate the cred-ibility of a witness when speaking through an interpreter. However, if the interpreter is trained to maintain important supra-segmental features, stylistic features and register in their rendition, this problem will be reduced to an insignificant level. The problem arises when untrained interpreters – who continue to be the majority – ignore features that are crucial to the assessment of credibility to the judicial officer, because in their view they are either irrelevant or superfluous, or because they simply do not possess the interpreting skills necessary to provide a fully accurate rendition. In any case, listening to someone speaking in a language for which they are less than competent will also make the evaluation of credibility very difficult. With regards to the second objec-tion, the reasons for speaking through an interpreter are almost always genuine. It is difficult to imagine why anyone with a good command of a language would relinquish their opportunity to express themselves.
Nevertheless, if the interpreter renders a faithful interpretation and abides by the code of ethics, the court should have nothing to fear.
The misconception of literal translation equating to faithfulness is one that has been discussed in chapter 1 and will not be discussed further, suffice it to say that attempts are being made to distil this myth. The final reason for the underutilisation of professional interpreter services is the erroneous belief that a judge can determine better than the person in question how competent they are in the language, based solely on a series of simple questions. This is a practice that is becoming less common, especially in Australian courts. Since 1995, a number of initi-atives has been implemented to educate the legal profession and the judiciary on the work of interpreters, on the interpreting process, the meaning of accuracy and on how best to work together. For example, in 1996, the Law Society published the Guide to Best Practice: Lawyers, Inter-preters, Translators (Sydney: The Law Foundation of New South Wales),
to which interpreters and interpreter educators contributed. Since then, the Bar Association, the Department of Public Prosecutions and the National Judicial Commission have all held seminars for their members on working with interpreters. Robinson and Chiu (2005) state that although there is no absolute right to an interpreter, with the common law principle of the judge’s discretion still in force, judges and magis-trates now tend to err on the side of caution.
The situation in other countries may not be as positive, possibly because they are relatively new to Community Interpreting. In Austria, for example, Kadric (2000) states that courts accept only selective inter-preting, where the interpreter is permitted to interpret only parts of the proceedings, thus making the provision of interpreting services totally inadequate. Kadric found that judges become impatient at hearing long segments in another language and interrupt the witnesses, not allowing them to resume, or at times interrupt the interpreter, not allowing them to complete their interpretations. In the Civil Code system, defend-ants have the right of reply to the other side’s testimony. However, in bilingual cases, the interpreter is not permitted to interpret the plaintiff’s testimony simultaneously to the defendant, which denies the defendant’s right to hear and to respond. Kadric comments:
Overall, the non-German-speaking party is not given a full chance to interact and communicate with the court If the rights of the non-German-speaking party are further curtailed by a lack of inter-pretation, due process is clearly violated Courtroom proceedings must ensure equal opportunity of interaction for all parties. In the case of non-German-speaking parties, this is only possible with inter-pretation at all stages of the proceedings. (Kadric, 2000: 162) Many more examples of inadequate provision of interpreting services as well as of poor working conditions could be provided. However, the scope of this chapter does not allow for further detail on this topic.
Interpreters’ performance
Much of the data-based linguistic analytical research into court inter-preting has focused on the performance of practising interpreters and on their interaction with the other participants. Through detailed micro-linguistic analysis, following the traditions of conversational analysis, discourse analysis and pragmatics, these studies have looked at the different aspects of interpreting that make it a highly complex
practice. Although most of these studies are descriptive, they suggest strong practical applications for training and practice. The two major and most comprehensive studies into court interpreting are Berk-Seligson’s (1990/2002) and Hale’s (2004). Both studies deal with multiple interpreters, hundreds of hours of data and present not only qualitative appraisals of isolated examples, but also quantit-ative analyses of complete cases which provide clear trends. Both studies also use experimental, discourse analytical and ethnographic methods.
Berk-Seligson’s (1990/2002) major study found, through an analysis of the interaction between all the participants in the bilingual courtroom, that in some way they all misconstrued the interpreter’s role: for example, interpreters took it upon themselves to rephrase questions or to instruct lawyers on how to ask them, or to reprimand witnesses for not answering relevantly; lawyers and judges often shifted to the interpreter their responsibility to speak directly to the witnesses and expected interpreters to ‘fix’ situations that they themselves could not. Berk-Seligson also found that interpreters’ changes to the original questions and answers were not inconsequential, altering their pragmatic effect, which in turn affected mock jurors’ evalu-ations of the witnesses’ trustworthiness, convincingness, intelligence and competence. She found that the interpreters in her sample tended to insert many of the features considered to belong to the
‘powerless testimony’ style, which, according to O’Barr (1982), has a negative impact on how witnesses are rated by jurors. Berk-Seligson uses the results of her study to argue for adequate training for court interpreters.
Hale (2004) analysed the discourse practices of the lawyers, the witnesses and the interpreters, first by analysing the questions, then the answers, and then both in combination. In her study of courtroom questions she found that the lawyers’ practices corroborated what had already been found with regard to the use of courtroom questions. A majority of interpreters demonstrated a lack of understanding of the specific purposes of certain question types, including the use of tags and other questioning strategies, such as discourse markers, repetition and modality. The majority of interpreters arbitrarily altered or omitted these features in their rendition of the questions, changing their prag-matic intention and force. Some of the changes related to inherent cross-linguistic differences, but some to individual choice. With regard to the answers, witnesses fell into distinct categories (as identified by O’Barr 1982; Conley and O’Barr, 1990). The sample of interpreters
in this study showed a tendency to alter the witnesses’ style, thus impinging on their potential evaluation by the magistrates. However, their changes were not consistent. Some interpreters improved on the witnesses’ styles, making powerless narratives into powerful ones; others did the opposite. Experimental studies showed that when the rendi-tions were fully accurate, that is, maintained not only the proposi-tional content but also reproduced the style and register, the results on the evaluation of credibility, intelligence and competence were almost identical to the results achieved when the originals were evaluated by Spanish speakers. However, the inaccurate renditions, which changed the style, achieved very significant differences as compared to the eval-uations of the originals. This result strongly suggests that it is possible to place the minority speaker in a very similar situation to that of a mainstream speaker when the interpreting is accurate in terms of content and style. The analysis of the whole interaction demonstrated a power struggle between all participants, resulting in instances of over-lapping speech, reprimands and switches to the use of the third person, making the work of the interpreter more difficult. Samples from the data were extracted and presented to practising interpreters, who had the advantage of seeing the utterances in front of them. The results showed that even when features such as discourse markers, tag questions and hesitations were visible, many of these interpreters still omitted them, following the same trend as the interpreters in the sample. The ones who kept these features were mostly those who had been trained and had been made aware of their significance. When questioned about issues relating to the legal system, the language of the courtroom and role, divergent responses were produced. Hale concludes that adequate training is necessary for interpreters to understand the reasons behind certain linguistic features and the significance of language style in the courtroom. Education of the lawyers and the witnesses about the role of the interpreter, the meaning of accuracy and the complexity of the interpreting process is also necessary to improve the overall service.
A number of smaller studies found similar results in relation to prag-matic alterations of the originals (Rigney, 1997, 1999; Rios, 1997; Berk-Seligson, 1999; Fraser and Freedgood, 1999; Mason and Stewart, 2001).
Other studies have looked at the interpreters’ treatment of register (Berk-Seligson, 1989a; Dueñas Gonzalez et al., 1991; Hale, 1997a; Brennan, 1999), finding that interpreters tend to raise the register or level of form-ality when interpreting into English, copying the style of the lawyers, and lower it when interpreting into the other language, copying the
style of the witnesses. Instead of allowing the participants to carry on the process of accommodation between them, thus giving them the opportunity to assess their speech level, many interpreters act as a filter and remove this process from the interaction by taking care of the accommodation themselves. In such situations, no one except the interpreter is aware that this is happening, and the main inter-locutors are under the mistaken belief that each is speaking in the same register.
Studies of politeness in court interpreting have produced different results. Berk-Seligson (1989b) found that interpreters tend to add polite-ness markers and therefore increase the level of politepolite-ness. Hale (1997b), in a small-scale study of four court cases, found that the interpreters interpreted politeness adequately, taking into account the pragmatic differences across the two languages and making the necessary lexical and syntactic adjustment to produce accurate renditions. Mason and Stewart (2001), in a case study, found that the interpreter altered the face-threatening components of the original utterances by failing to interpret pragmatically.
All of the studies discussed highlight the immense difficulties encountered by court interpreters. Not only do they need to attempt to render an accurate version of what they heard with very little time to think and often with no opportunity to prepare for the assignment, they must do so within the constraints of the courtroom and amidst the conflicting expectations of those who speak through them, who often misunderstand or simply are not aware of all the challenges. These challenges are discussed in chapter 5, drawing not only on what has been already written on the subject, but also on the voices of practising interpreters.
Further reading
Berk-Seligson (1990/2002). This book reports the first and one of the largest data-based studies into court interpreting. Set in the United States, it researches the performance of a number of Spanish-English interpreters and their impact on the legal process.
Cook, Eades and Hale (1999). This special issue of Forensic Linguistics provides a compilation of research papers on different aspects of the discipline. The articles cover a wide range of topics from different perspectives.
Hale (2004).This book reports the results of one of the largest data-based studies into court interpreting. The data are drawn from 17 cases in Australia which were interpreted by Spanish-English interpreters. The book studies the discourse practices of the interpreters, lawyers and witnesses in fine detail.
Laster and Taylor (1994). This book was written by two academic lawyers and provides a very useful overview of the state of the profession and of the main issues surrounding legal interpreting in Australia.
Mikkelson (2000). This manual is a useful introduction to court interpreting for those wanting to know more about the discipline or wanting to become court interpreters.