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Certified Courtroom Interpreters

A Quick Guide to Oklahoma's Program

By Debra Charles

 

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The language used in the courtroom can be confusing and difficult to understand, and ordinary words or phrases often have unexpected meanings. Lawyers often use a unique combination of legalese, acronyms, idioms and sports metaphors. For persons who are limited English proficient (LEP), having meaningful language access during their day in court can be challenging.

Qualified interpreters play an essential role in ensuring equal access to justice and helping court proceedings function efficiently and effectively.1 To further this important goal, the Oklahoma Supreme Court has approved a credentialing program for interpreters in the Oklahoma courts.2 Like attorneys, credentialed court interpreters have proven their skills through testing and training, are required to comply with continuing education and are bound by ethical standards. This article discusses a few important areas for lawyers who might encounter these interpreters in the courtroom: credentialing levels, modes of interpreting and interpreter ethics rules.

CREDENTIALING LEVELS – REGISTERED AND CERTIFIED INTERPRETERS
Two levels of courtroom interpreter credential for spoken languages are recognized in the Oklahoma courts. “Certified courtroom interpreters” hold the highest level of credential, and “registered courtroom interpreters” hold the second highest level of credential. The process is cumulative – a candidate must first become registered, and then he or she may apply to take the examination to become fully certified. The Oklahoma program utilizes nationally recognized standards for training and examination.3

Courtroom interpreting credentials are not easy to obtain. As with official court reporters, these language professionals are making the official record for the court. It takes more than just being bilingual to qualify. The first step is to become a registered courtroom interpreter. To do so, the candidate must:

  1. Attend an intensive Oklahoma two-day orientation training program;
  2. Pass a written English examination to verify adequate proficiency and understanding (including legal terminology and interpreter ethics); and
  3. Pass a basic proficiency examination in the foreign language of expertise.

All candidates must also pass a background check and must be U.S. citizens or qualified to work in the United States. There are currently 62 registered courtroom interpreters on the Oklahoma registry. 4

The second level of credential is a fully certified courtroom interpreter. This is the “gold standard” and is widely recognized in most state court systems. While registered interpreters have demonstrated a basic level of proficiency, certification as a court interpreter indicates the highest skill level and establishes the interpreter’s competence as a language professional to accurately perform in all three modes of interpreting.

The certification exam is challenging, even for individuals who are highly proficient in both languages. Multiple cognitive functions are involved when an interpreter listens, comprehends, decodes and produces the interpretation with the required speed and accuracy. Practice is necessary for a candidate to develop the skills needed to perform well in all modes of interpreting. Similar to the certified shorthand reporter exam process, many candidates require more than one attempt before passing the certification exam.

In Oklahoma, the oral examination to become a certified courtroom interpreter is administered by the Administrative Office of the Courts twice a year. There are currently eight certified courtroom interpreters on the Oklahoma registry.5

MODES OF INTERPRETING
Three modes of interpreting are recognized in the court interpreting profession and have been adopted in federal and state courts: simultaneous interpreting, consecutive interpreting and sight translation of documents.6 Each mode fits particular needs and circumstances in the courtroom. Court interpreters will switch between these modes during a proceeding as needed. For lawyers attempting to work with interpreters in the courtroom, understanding the three modes of interpreting is essential.

Simultaneous Mode

Simultaneous interpreting occurs when the non-English speaker is not actively a part of the conversation. This mode (sometimes called whisper mode) is used whenever the LEP person (usually the defendant) is passively listening to other speakers, such as during witness testimony, statements from the judge or arguments of counsel. If someone is speaking during that LEP person’s day in court, then the interpreter should be quietly interpreting in “whisper mode” so the defendant hears what is going on. During this mode, the interpreter is not heard by others in the courtroom.

Consecutive Mode

Consecutive mode occurs when the LEP person is playing an active role in the conversation and must speak or respond during examination, cross-examination or to the judge. During consecutive mode, the interpreter listens while the speaker completes a question or answer and then converts what was said into the target language. There is a pause after each question and each answer to allow the interpretation to go back and forth, between English and the foreign language, depending on who is speaking. During consecutive mode, the interpreter is heard by other participants in the courtroom, and the interpretation into English becomes part of the court record.

Sight Translation of Documents

The third mode is sight translation. Certified courtroom interpreters are tested for their ability to read a document written in one language while translating it orally into the target language. “Live” sight translation in court is appropriate only for short documents (one or two pages), such as an affidavit, medical record, police report, foreign birth certificate, etc. Interpreters are trained to ask for a few minutes to quietly read the document before attempting to do a sight translation. Judges and lawyers are encouraged to allow the interpreter a few minutes to do so. For lengthy documents, such as articles or transcripts, the process will be much more accurate and efficient if the translation is completed prior to the live court proceeding.

ETHICS RULES FOR INTERPRETERS
The Oklahoma Supreme Court has adopted the nationally recognized ethics code which governs courtroom interpreters.7 For lawyers and judges, understanding some of these key concepts is important when working with courtroom interpreters.

Courtroom interpreting is very different from interpreting in other settings. In medical or classroom settings, skilled interpreters routinely summarize, simplify, embellish, rephrase and explain in order to convey the necessary information between the parties. However, in the courtroom, the opposite is true. The primary goal for court interpreters is accuracy and completeness – to preserve the language level, register, style and meaning of the speaker as precisely as possible. Rule 3 of the Code of Professional Responsibility for Interpreters mandates that “Interpreters shall render a complete and accurate interpretation or sight translation, without altering, omitting, or adding anything to what is stated or written, and
without explanation.”
8

The mandate for completeness means that everything should be interpreted for an LEP defendant, including arguments of counsel, testimony of witnesses and statements of the court. Even when the defendant is not actually responding to questions, meaningful language access occurs when everything that happens at the proceeding is interpreted for the LEP litigant. Interpreters should never be instructed to “stop interpreting” during the proceeding if the LEP person is a party.

Courtroom interpreters must not summarize, embellish or paraphrase anything. If the witness uses poor grammar, crude language or profanity, the interpretation should convey that same content and register. Interpreters should not be admonished for being the conduit for such utterances, as their rules and training prohibit them from censoring or cleaning up the
speaker’s language.

The rules require interpreters to preserve the same level of speech being used by the speaker. In court, the interpreter must take care not to make a defendant or witness sound more educated, confident or sophisticated than their own words convey. It is important not to blame the interpreter, even if the interpretation contains fragmented or incoherent statements or improper grammar. Similarly, if the judge or attorney is using sophisticated language, the interpreter should use that same high level in the target language.

Many idiomatic expressions often used by lawyers have actual meanings very different from the literal interpretation and can cause major confusion. To be accurate, interpreters often must figure out the linguistic equivalent for a statement or concept. Some examples include turn a blind eye, take the law into your own hands, par for the course, null and void, fine print, chip on his shoulder, slap on the wrist, down to the wire and throw in the towel. Qualified courtroom interpreters are trained that verbatim “word-for-word” interpreting is not appropriate if it distorts the actual meaning. If there is no equivalent, the judge may need to instruct the attorney to rephrase the question.

Another important ethical rule governs scope of practice.9 The rule provides that “Interpreters shall limit themselves to interpreting or translating and shall not give legal advice, express personal opinions to individuals for whom they are interpreting, or engage in any other activities which may be construed to constitute a service other than interpreting or translating while serving as an interpreter.”

When LEP defendants finally meet their court interpreter, the interpreter may seem like a super hero – finally, someone who speaks their language has arrived! This can lead to a barrage of questions about the case, the judge, the plea forms, the prosecutor or the penalty for the offense being charged. However, the interpreter is permitted to convey legal advice only while an attorney is actually giving it. Courtroom interpreters are trained to avoid meeting with defendants without the attorney being present. Interpreters should not be asked to independently assist with preparation of forms or explain court procedure. Judges and lawyers are encouraged to protect interpreters from being placed into such positions.

During the actual proceeding, the LEP person might not understand what is going on or what is being asked. The scope-of-practice rules prevent interpreters from having an independent dialogue with the LEP person to explain what someone meant or to rephrase questions. Instead, the courtroom interpreter should simply act as a conduit – interpreting the LEP person’s questions or confused responses into English and allowing the attorney or the judge to clarify, rephrase or add more explanation for the LEP person to understand.

CERTIFIED SIGN LANGUAGE INTERPRETERS
Oklahoma’s program also includes certified sign language interpreters. Although their credentialing process is somewhat different from spoken language interpreters, Oklahoma’s certified sign language interpreters have also satisfied rigorous requirements. Like the foreign-language interpreters, they have demonstrated their abilities through testing and training, they are bound by the ethics rules and they must comply with continuing education requirements. A certified sign language interpreter whose registration is current is eligible to serve as a “qualified legal interpreter” pursuant to the Oklahoma Legal Interpreter for the Deaf and Hard-of-Hearing Act.10 There are currently 10 certified sign language interpreters on the Oklahoma registry.

TIPS FOR LAWYERS WORKING WITH COURTROOM INTERPRETERS
Oklahoma’s district courts are not funded for staff interpreter positions, and the courtroom interpreters on the registries are not court employees – they are freelance professionals. Interpreter scheduling for court proceedings is handled by the local district court or by the lawyers in the case (not the Administrative Office of the Courts). While the pool of credentialed interpreters continues to grow, it is not always feasible to secure a registered or certified interpreter for every proceeding.11 Moreover, budget shortfalls limit the ability of the district courts to pay the costs for interpreter services in many instances.

Some practical tips for working with an interpreter in the courtroom:

  • Position interpreters where they can see the participants and hear what is being said, including arguments of counsel at the bench.
  • Speak clearly and slowly, and avoid talking over other speakers.
  • Allow pauses for interpretation during long questions or answers. Many witnesses forget to pause, and interpreters cannot retain detailed lengthy narratives.
  • Speak directly to the party or witness, not to the interpreter. Do not tell the interpreter to “ask him…” or “ask her…”
  • Construct questions using straightforward language. If possible, avoid double negatives or compound sentences.
  • Be mindful of interpreter fatigue and allow for breaks if the proceeding is lengthy.
  • Interpreters are not immune to mistakes, slips of the tongue or memory lapses. Errors should be corrected as soon as possible, hopefully without causing undue embarrassment to the interpreter. If you believe the interpreter misunderstood the question or answer, or made a mistake, the best solution is to immediately follow up with a rephrased question.
  • Allow the interpreter to converse briefly with the non-English speaker to ensure understanding of accents, dialect or pronunciation differences.
  • Don’t ask the interpreter to independently explain or rephrase anything said by the LEP person. Instead, clarify by asking the LEP person questions through the interpreter.
  • If possible, allow the interpreter to review helpful exhibits or pleadings prior to the hearing, to become familiar with names, dates and technical vocabulary. Distribute copies of jury instructions, plea forms, etc. to the interpreter.
  • Don’t expect literal word-for-word interpretations. Interpreters convey the meanings of words and phrases, which is often different from the literal translation. Be mindful of idioms, metaphors and sports-based expressions, which can be very confusing for non-English speakers.
  • Interpreters are not attorneys. They can interpret questions and answers, but interpreters should not be asked to perform attorney-type work or explain legal forms to LEP persons.

CONCLUSION
The Oklahoma Supreme Court’s Interpreter Program is still relatively new, but a growing group of qualified professionals is emerging to provide language access in the district courts. These registered and certified interpreters have worked hard to earn their credential. As freelancers, many of them provide additional interpreting services and would be eager to provide language services for you – inside or outside of the courtroom. If you are in need of a qualified interpreter, please remember to check the registries on OSCN.

ABOUT THE AUTHOR
Debra Charles is general counsel for the Administrative Office of the Courts and also directs the Supreme Court’s Language Access/Certified Courtroom Interpreter Program. She works closely with the state boards of examiners for Oklahoma court reporters and court interpreters. She is a graduate of the OU College of Law.

1. The Preamble to the Code of Professional Responsibility for Interpreters, at Rule 1, Title 20, Chap 23, App I, states:

Many persons who come before the courts are partially or completely excluded from full participation in the proceedings due to limited English proficiency or a speech or hearing impairment. It is essential that the resulting communication barrier be removed, as far as possible, so that these persons are placed in the same position as similarly situated persons for whom there is no such barrier. As officers of the court, interpreters help ensure that such persons may enjoy equal access to justice, and that court proceedings and court support services function efficiently and effectively. Interpreters are highly skilled professionals who fulfill an essential role in the administration of justice.

2. The Supreme Court has approved detailed rules related to courtroom interpreting in the Oklahoma courts. The Code of Professional Responsibility for Courtroom Interpreters in the Oklahoma Courts is set forth at Title 20, Chap 23, App I. The interpreter credentialing and continuing education process is set forth in the Rules of the State Board of Examiners of Certified Courtroom Interpreters. Title 20, Chap 23, App II. Rules governing disciplinary proceedings are set
forth at Title 20, Chap 23, App III.
The State Board of Examiners of Certified Courtroom Interpreters provides oversight of the interpreter credentialing and disciplinary program, with subject matter expertise, exam proctoring and program administration provided by the Administrative Office of the Courts professional staff. The board is created by statute, and its actions are supervised by the Supreme Court and subject to approval by the court. See 20 O.S. §1701, et seq.
3. The court interpreter credentialing process developed by the National Center for State Courts (NCSC) is widely recognized as the industry standard for certification of courtroom interpreters. Like most states, Oklahoma uses these nationally recognized standards and the NCSC examinations for its courtroom interpreter credentialing.
4. The registries of courtroom interpreters are posted on the Certified Courtroom Interpreters page of the Oklahoma State Courts Network, www.OSCN.net (go to Programs > Certified Courtroom Interpreters).
5. There is also a registry for “provisional status” interpreters. This level of credential is no longer available in languages where fully registered and/or certified interpreters are credentialed in Oklahoma. The provisional process is intended for interpreters speaking more exotic languages to have their names listed for possible use in the courts. A provisional interpreter has not achieved certification or registration but has met certain minimum verified requirements. Provisional interpreters do not possess an official certification and have not achieved the higher levels of training and qualifications required of registered and certified interpreters. See Rule 2, Title 20, Chap 23, App. II.
6. The certification process requires oral examinations testing the interpreter’s skills in all three modes of interpreting. See Rules 4 and 11 of the Rules of the State Board of Examiners of Certified Courtroom Interpreters, Title 20, Chap 23, App II.
7. Code of Professional Responsibility for Courtroom Interpreters, Title 20, Chap 23, App I.
8. Id. Rule 3.
9. Id. Rule 9.
10. 63 O.S. §2407, et seq. and Rule 12, Title 20, Chap 23, App I.
11. It can be challenging to obtain a qualified interpreter in a timely manner. This issue has long been addressed in 20 O.S. §1710. This year, SB489 amends §1710, to become effective Nov. 1, 2019. The new version of §1710 states:

In district court proceedings, the court shall endeavor to obtain the services of a courtroom interpreter with the highest available level of credential prior to accepting services of an interpreter with lesser credential and skill. Certified courtroom interpreters have the highest recognized level of credential in this state, and registered courtroom interpreters have the next highest level. When good cause is shown and the court has determined that it would not be practical, within a reasonable time frame, to secure the services of an individual certified under Sections 1701 through 1710 of this title, the court may utilize the services of a registered courtroom interpreter. When good cause is shown and the court has determined that it would not be practical, within a reasonable time frame, to secure the services of a registered courtroom interpreter, the court may utilize the services of a provisional interpreter or other person who does not hold a certified or registered credential. If the Board establishes additional levels of qualified interpreters, the court shall follow the recognized hierarchy of credential when endeavoring to obtain interpreter services. For purposes of this section, “good cause” means that due to the nature of the hearing, and time being of the essence, the securing of a certified or registered interpreter would not be possible due to the time, distance, or availability of a certified or registered interpreter. The court shall make a specific finding as to the good cause for the emergency circumstances. In addition, the non-credentialed person shall have reasonably demonstrated to the court and the parties such person’s proficiency for the purposes of that hearing. It is also mandatory that the proceedings are audio taped, and in the event of deaf or hard of hearing individuals, audio and video taped. The recording shall be labeled and remain an official part of the record.

Also, Rule 16, Title 20, Chap 23, App II states, in part:

c) The court shall endeavor to obtain the services of a courtroom interpreter with the highest available level of credential prior to accepting services of an interpreter with lesser certification and skill.
d) As provided in 20 O.S. §1710, when good cause is shown and the court has determined that it would not be practical, within a reasonable time frame, to secure the services of a Registered or Certified Interpreter, the court may utilize the services of a Provisional Interpreter or other person who does not hold a Registered or Certified credential. Whenever possible, any court proceeding interpreted by a Provisional Interpreter, Registered Interpreter, or other person who is not enrolled as a Certified Interpreter shall be audio recorded and the recording shall be made an official part of the record as required by 20 O.S. §1710 and Supreme Court Rule 1.410.

Originally published in the Oklahoma Bar Journal -- OBJ 90 pg. 16 (August 2019)