Reflections on language access standards and the actual interpreting in the New York State Courts
I. New York and the US are in the vanguard of court interpreting
The United States has been at the vanguard of court interpreting ever since the Court Interpreters Act of 1978 and the creation of the Federal Spanish Court Interpreter exam under the auspices of the University of Arizona and Dr. Roseann Dueñas González.1 New York was one of the first states to provide free interpreters in every type of judicial proceeding, including civil and family court matters. As the New York State Court Interpreter Manual sets forth, court interpreters must “faithfully and accurately interpret what is said without embellishment or omission, while preserving the language level and/or register of the speaker.” This standard of “legal equivalence” derives from the Court Interpreters Act, which “is designed to put non-English-speaking witnesses, defendants, and litigants on an equal footing with those who are English-speaking” (Tayler, M. R., 1988). “Interpreters must be able to translate with exactitude…while accurately reflecting a speaker’s nuances and level of formality…The interpretation cannot be a summary or convey only the gist of the original source message” (Federal Judicial Center, 1989).2 Despite the admirable work that many of our court interpreters do in the courts, the actual standard would tend to fall short of this ideal of equal access. How do we address this discrepancy?
II. What it takes to be an interpreter
The interpreting profession requires a very broad and high-level skill set. The following is a non-exhaustive list of requisite skills for interpreters:
(1) Interpreters must of course have superior or native command of their two working languages.
(2) They must be able to multi-task complex skills. Simultaneous interpreting requires use of at least 22 cognitive skills at any given moment. 3
(3) The interpreter has to have an exceptional short-term memory combined with excellent note-taking techniques for the consecutive mode.
(4) The interpreter must be able to untangle complex or vernacular utterances at a quick pace in every mode of interpreting.
(5) This process also applies to sight translation, which requires quick-paced translation out loud of written texts ranging from high- to low-register.
(6) Translation in the strict sense, transferring one language into another, is the underlying skill for all language interpretation and takes many years of training, study, and practice to master. A good translator’s understanding of the ideas behind the words results from continued practice, research, and contemplation of her working languages. Idiomatic translation is a fine art.
(7) Clear diction is necessary, in both languages, even at very fast rates of speech.
(8) Accents and dialects with which the interpreter is less familiar are bound to occur. While this deficit underscores the need for continuing education, the interpreter needs to be able to make sense quickly of novel forms of expression and render them into the target language.
(9) This deciphering is also necessary when people speak unclearly or inaudibly.
(10) Other ancillary skills also play a role, such as being able to work under pressure in the high-stakes adversarial judicial environment.
(11) Avid reading is necessary in order to expose oneself to one’s working languages in their many variants. The good interpreter constantly researches, grappling with the new vocabulary and terminology that continuously arises.
(12) Since human interaction is also a constant in court interpreting, court interpreters must be highly proficient in interacting with lawyers, judges, litigants or defendants, witnesses, court officers and clerks, other court staff, and the general public in the courthouse.
New interpreters have to immerse themselves in a plethora of vocabulary and terminology. Of course there are court terms, such as a criminal—as opposed to a civil—complaint, disorderly conduct, or an order to show cause. But there is also a larger orbit of terms that can come up in court. For instance, when I started, I was not sure how to translate “irregular heartbeat,” “nail-polish remover,” or “syringe” into Spanish. Of course, an interpreter may have excellent all-a-round vocabulary in her working languages. Yet in reality she is dealing with two linguistic worlds. What is more, experience living in one language culture is not the mirror image of the other and, thus, the interpreter’s knowledge of one language does not always neatly correspond to that of the other. Finding all the appropriate equivalents requires ongoing exposure to language in context, in addition to study and research. We must strive to expand our knowledge of our pair of working languages so that they replicate each other as completely as possible. The court interpreter will probably come up to speed more quickly in using the court argot than in the larger orbit of general vocabulary that can come up on occasion in court.
III. Coming up to speed
Given the extremely high espoused standard of court interpreting and the broad gamut of skills it entails, few or no individuals command them all at the outset. They will have to work hard, especially in their early career, to complete their toolbox. Training opportunities are sorely lacking, especially for languages other than Spanish. Since there is not an obvious, established course of study to hit the ground running as a court interpreter, as undesirable as the situation may seem, much of the education interpreters get is empirical—learned on the job. The fact that the only official requirements for entry are a high-school diploma, passing the written and oral certification exams, and passing the background check can be misleading. The job is extremely demanding, and there are probably not enough fully qualified candidates to fulfil demand.
The certification exams have gotten more and more difficult since they were first instituted in the 1980s. In New York State, 1,502 people participated in the exam cycle ending in 2016, of which 106 passed, 969 failed, 420 did not show up, and 7 were disqualified. These results were after the application of a bell curve on both the written and oral portions, without which, far fewer than the 106 would have passed. The pass threshold on both exams is 70% accuracy. These exams occurred with optimal sound conditions and hence are atypical of the acoustical conditions in the courts. Assuming the last oral exam is a fair representation of what one can expect to find in court, the goal of “legal equivalence” seems illusory. What is more, it appears that many of the candidates who passed before application of the curve were previously certified, practicing court interpreters.4
On a brighter note, even after the curve adjustment, the 106 who passed this time overall seem to be performing at a higher level than the top 106 from the last exam cycle (2009-2011). The most recent written and oral exams were both far more difficult than the previous time. I took both and scored about the same both times even though I was much more qualified the second time around. I personally know of five formerly certified per diem interpreters who failed the last exam. Just about every one of the 106 newly certified interpreters who were available to work in New York City was employed as staff within six months of publication of the exam results.
IV. Interpreters are not the only link in the chain of communication
The entire onus of language access should not fall on the shoulders of interpreters alone. The individuals with limited English proficiency (LEP) for whom interpreters interpret do not always express themselves clearly or understand what they are told in their own language. Attorneys often do not elucidate the legal issues at stake to their clients. Indeed, some attorneys do not always even express themselves clearly in English. Attorneys often go on the record engaging their clients in complex legal transactions without prior conferencing. Lawyers and judges often speak at lightning speed or inaudibly. When one translates English to Spanish, there is about a 25% expansion in the number of words.5 Thus, the Spanish has to be even faster than the English. While court users from the general public are often lost in the court system, working interpreters find themselves in the crossfires of rampant miscommunication.
Finally, while interpreters are not permitted to determine the policies that govern their working conditions, we hope that those in charge of court policies will partner with us to ensure that interpreters remain a strong link in the chain of communication.
V. Some possible solutions
(1) The introduction of monitoring: The Office of Court Administration (OCA) set out a comprehensive language access plan in March 2017, which includes a monitoring program that was set to launch in fall of that year. The obvious objective would be to control quality. Yet the monitoring also should serve to ascertain a realistic standard. I hope that this program will encourage better interpreting in the courts and does not have unwanted negative side effects, like punitively singling out certain interpreters who happen to be the object of the monitoring. Any observer should keep in mind that the performance of an individual interpreter is largely the reflection of the OCA’s historical investment in quality enhancement.
(2) Glossary exchanges: Translation is not an exact science. Ongoing research and consultation with colleagues and subject-matter experts are a must, as is the creation, expansion, and sharing of glossaries.
(3) Facilitate a dialogue about acceptable standards: The monitoring of interpreters and the glossary exchange could facilitate a necessary dialogue between interpreters, administrators, the monitors, judges, lawyers, and other stakeholders about current existing standards and realistic and acceptable standards to pursue henceforth. It seems self-evident that the participation of court interpreters will always be essential in whatever dialogue takes place about language access.
(4) Take stock of the available court interpreter training programs: By law and by moral obligation, the courts need to make every effort to achieve legal equivalence for LEP individuals. The New York State Office of Court Administration, along with the interpreters’ Local 1070, and professional interpreter organizations, such as the National Association of Judiciary Interpreters and Translators (NAJIT), the American Translators Association (ATA), or the New York Circle of Translators, should identify and utilize the existing training within and without the court system and examine how the courts can partner with training institutions, the union, and professional organizations to improve training programs and further tailor them to the reality on the ground in the New York State Courts.
(5) Engage in partnerships: The courts should also consider partnering with the New York Bar Association, domestic and foreign law schools, and foreign professional organizations. This collaboration would furnish additional resources to enable court interpreters to do their job more professionally. With regard to languages of lesser diffusion, foreign translator and interpreter associations hold great potential for enabling interpreters of those languages to do their jobs better. There may not seem to be many resources for interpreters of Polish or Turkish in this country, but there are sizable markets and hence extensive experience in Poland and Turkey, respectively, in translating and interpreting English. Foreign law schools are also a great potential resource for languages of lesser diffusion, in particular for the pursuit of the best possible equivalent of US (and New York) legal terms. This translation work and research is already being done, and it would be a misfortune not to take advantage of these valuable resources.
(6) Invest in language access: Finally, to make greater strides towards full language access, more money will have to be invested to make training accessible and jobs attractive.
Leonard Morin is a staff interpreter at Manhattan Criminal Court. He previously practiced as a freelance translator and interpreter from 2004-2015. Leonard interprets Spanish and Dutch and translates chiefly legal and cartography-related documents from Dutch, Spanish, and German into English. He earned a propedeuse degree in law in the Netherlands and graduated magna cum laude with a B.A. in Latin American Studies from Columbia University. Leonard has earned translation and interpreting certificates and won academic prizes for his Spanish and German. He previously served separate terms as president and secretary of the New York Circle of Translators and is currently a delegate of his union Local 1070 to District Council 37.
1-de la Vega, María Cristina (2013). “Roseann Dueñas González: No Longer a Voice in the Wilderness.” ATA Chronicle. Consulted on November 18, 2018 at: http://www.atanet.org/chronicle-online/wp-content/uploads/4202_21_mar%C3%ADa_de_la_vega.pdf
2-Tayler, M. R. (1988). “Interpretation/translation assistance in immigration proceedings.” Immigration Journal, 11(3), 57-61. Found in: Dueñas González, Roseann (1991). Fundamentals of Court Interpretation: Theory, Policy and Practice. Carolina Academic Press. Durham.
Federal Judicial Center. (1989, June). Court interpreter qualification process amended, Navajo and Haitian Creole certification planned (1989-241-150-00006). The Third Branch: Bulletin of the Federal Courts, 21(6), 7. Washington, DC: U.S. GPO. Found in: Fundamentals.
3-Fundamentals. Pg. 176
4-I participated in the last two exam cycles, ending in 2011 and 2016, respectively. The latter was markedly more difficult than the former. After the last exams, I participated in the so-called computational review in which the OCA explained the grading methodology. The civil service list of candidates who passed the exam was published online, where it remained several months until it was apparently taken down.
5-Transfluent. “Why Spanish Uses More Words Than English: an Analysis of Expansion and Contraction.” Transfluent translation agency Web site, consulted on November 18, 2018 at: https://www.transfluent.com/en/2015/07/why-spanish-uses-more-words-than-english-an-analysis-of-expansion-and-contraction/