Content written by Tom Garden, Director of Business Development
Defendants and plaintiffs that don’t speak English face challenges navigating the criminal justice system. They often don’t understand courtroom procedures or their rights under the law. The language barrier can also make it difficult for them to cooperate with their attorneys. Defendants need to be able to provide key information and help understand possible ways to structure their defense. Plaintiffs need to understand the strength of their case and the risk/benefit analysis when considering a settlement. A good interpreter can do more than just legal translations. A talented interpreter can understand the nuance in a lawyer’s questions and provide clients with the most comprehensive translation. Without interpreters, those who cannot speak English would be denied the full protection of the law.
Legal interpretation has its own set of rules, terminology, difficulties, solutions, and patterns. One should not assume legal or court interpreting is simply a matter of understanding two languages and legal terminology. There are many aspects of legal interpreting that are unexpected and problematic, and the use of non-qualified interpreters is one such challenge. In Minnesota, legal interpreting is federally mandated and therefore professional court interpreters must be used consistently and correctly. Legal interpreters are professional linguists, with relevant qualifications and crucially, courtroom experience. They need to not only be able to translate language, tone and context – but it is also vital that they can translate the law, particularly in situations where legislation differs or terminology cannot be directly translated from one language to another. In addition to these skills, a legal interpreter must be wholly reliable, impartial and maintain confidentiality throughout the case.
The Minnesota Judicial Department defines legal interpreters in the following two ways:
Certified Interpreter: An interpreter who has attended a two-day orientation seminar, scored at least an 80% on the written examination, scored at least a 70% on a three-part oral exam, passed a criminal background check, and who abides by the Court Interpreter Code of Professional Ethics.
Non-Certified Interpreter: An interpreter who has attended a two-day orientation seminar, passed a criminal background check, and who abides by the Court Interpreter Code of Professional Ethics.
According to a recent American Community Survey, approximately 10.26% of the Minnesota population speaks a language other than English.
Misunderstandings are surprisingly common in state and local courts. Because many states and localities don’t use tested court interpreters and ignore federal rules for when interpreters are required, many criminal defendants and civil litigants with limited English skills are not equipped to navigate the complex legal system, jeopardizing their constitutional rights. The lack of skilled interpreters is less of a problem in federal courts, where interpreters must pass a competitive test. Most states certify court interpreters, requiring that they pass a test to demonstrate their language skills. But many state certification tests aren’t as rigorous as the federal one, and many state and local courts allow uncertified interpreters to serve even if they haven’t passed the test. Many states also ignore the federal mandate that they provide free interpreters in both criminal and civil courts. Unfortunately, states allow uncertified interpreters to serve for various reasons, including states may not have a certification test for languages of lesser diffusion. And if they do, it’s possible that nobody has passed it. That forces judges to rely on someone who isn’t certified, or perhaps someone who is familiar with the language but doesn’t regularly interpret.
Accuracy in court interpreting is not reached by linguistic fluency alone. Of course this is essential, but it is a necessary, and not a sufficient element of what makes an excellent court interpreter. What is also extremely important is a high level of knowledge of legal terminology in both working languages. If an interpreter does not understand legal terminology and procedures they will be unable to pass along what is being asked, to translate legal assumptions to languages that might not natively hold them, and to communicate the requirements and consequences of the situations in which their clients find themselves. What is more, not only must a court interpreter be able to do all of this with speech, they need to be able to translate legal documents and pieces of evidence, verbatim, by sight.
In conclusion, the role of the court interpreter is a difficult, demanding and complex one which requires talented, highly disciplined and well-trained professionals. It is easy to overlook the nuances and highly-specialized skills demanded by this profession; far from speaking two languages the court interpreter must also speak the legal jargon of the case and the many linguistic characteristics of his or her defendant.