Throughout much of the 20th century, court authorities in the United States addressed language barriers by grabbing the first bilingual (or marginally bilingual) person available and asking for an interpretation of only the most salient portions of dialogue.[1] This practice denied linguistic minorities access to justice in two main ways: First, the people who acted as go-betweens – police officers, attorneys, court staff, family members – often lacked the linguistic skills or ethical acumen to do their job well; second, linguistic minorities usually received only partial or sporadic translations of court proceedings.

This latter problem became the grounds for appeal in the 1970 case of Negrón v. State of New York. Three years earlier, a jury had convicted Rogelio Negrón, a Puerto Rican potato packer, of murder. The problem with the trial, however, was that Mr. Negrón spoke no English, and court authorities provided an interpreter only when they needed to interrogate him. For most of the trial, Mr. Negrón did not understand what anyone was saying.

Regardless of guilt, Mr. Negrón argued that the language barrier had undermined his right to participate in his own defense. The judges who reviewed the trial agreed. For defendants with limited English, they ruled, the normal rights to consult counsel and confront witnesses implied a “derivative right” to a qualified interpreter. As they further explained, Mr. Negron’s right to hear and question the English-speaking witnesses against him “necessitated that he hear more than the babble of their voices.”^[2]

In 1974, the Arizona Supreme Court reached a similar conclusion in State v. Natividad. In the original trial, a jury found José Natividad, a farmworker who was out of a job, guilty of transportation of marijuana and possession of the drug for sale. As in the Negrón case, however, the court used an interpreter mainly to question and prosecute Mr. Natividad but did not provide one to help him prepare his defense, consult attorneys or simply understand what was going on.

In his appeal, Mr. Natividad made a strong case for the right to an interpreter throughout the entire proceedings. The justices of the Supreme Court concurred. In their words, a trial in which a defendant understood only a small fraction of the proceedings “comes close to being an invective against an insensible object, possibly infringing upon the accused’s basic ‘right to be present in the courtroom at every stage of his trial.’”^[3]

The Negrón and Natividad cases helped establish the standard of completeness for professional courtroom interpreting. In California, one of the first states to codify this standard, rules of the court indicate that “when interpreting for a party, the interpreter must interpret everything that is said during the entire proceedings.”^[4] Only with such completeness can linguistic minorities have equal or near-equal footing with their English-speaking counterparts.

The state of Oklahoma has set the same standard. As Debora Charles, general counsel for the Administrative Office of the Courts, has explained: “The mandate for completeness means that everything should be interpreted for an LEP [limited English proficient] 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.”[5]

Professional court interpreters understand their responsibility to interpret everything. On the witness stand, they interpret responses consecutively, but for other proceedings, they use whispered simultaneous interpretation to keep linguistic minorities abreast of the dialogue. In my case, I cannot recall ever being asked to “stop interpreting.” However, there is one setting where the standard of completeness is sometimes forgotten: online.

Since the pandemic, more and more courts have begun conducting bond hearings, arraignments, Department of Human Services meetings and other proceedings over Zoom or similar virtual meeting platforms. Many parties, including interpreters, like this option. Yet, unfortunately, the basic Zoom meeting does not allow for simultaneous interpretation. All too often, interpreters find themselves merely looking at faces on the screen when, in a courtroom, they would be whispering alongside the linguistic minority.

In turn, linguistic minorities find themselves in a similar situation as Rogelio Negrón in the 1960s, hearing only a babble of voices. Their right to understand what is going on around them at the same level as an English speaker is effectively breached.

This challenge has two main solutions: First, we can use consecutive interpretation for all online proceedings involving linguistic minorities. Even when non-English speakers only listen in silence, as in the majority of a bond hearing, all parties would need to pause regularly for the interpreter. Some authorities already try to do this, but the pressure of a full docket sometimes takes over. Admittedly, too, consecutive interpretation doubles the length of all proceedings. It is tedious, yet it is ethical.

A second option is a Zoom program that has two different audio channels – for example, one for English and one for Spanish. In the first channel, English-speaking parties can carry on their dialogue as normal, while in the second, the interpreter provides a simultaneous interpretation for Spanish speakers. When parties address the court in their native language, the interpreter switches to the English channel and interprets. Multi-channel platforms are common in conference interpreting jobs. They could also work for the courts.

Either method of online interpreting will help protect the rights of linguistic minorities to understand the legal proceedings that involve them. Either method will prevent courts in Oklahoma and around the nation from falling back into the old ways of sporadic interpretation that denied countless linguist minorities meaningful access to the U.S. legal system.

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ABOUT THE AUTHOR

Following undergraduate studies at Brigham Young University, Taylor Cozzens earned a master's degree in Spanish translation and interpretation from the Middlebury Institute of International Studies in Monterey, California. He then moved to Norman to pursue doctoral studies at OU. For the past four years, he has worked part-time as a certified courtroom interpreter in central Oklahoma.

 

 

 

 

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ENDNOTES

[1] See Roseann Dueñas González, Victoria F. Vasquez and Holly Mikkelson, Fundamentals of Court Interpretation: Theory, Policy, Practice (Durham: Carolina Academic Press, 1991), esp. 35-70.

[2] “Confrontation – Right to a Translator (United States ex rel. Negrón v. State of New York),” St. John’s Law Review 46, No. 3 (March 1972): 468-470; See also “United States ex Rel. Negron v. State of N.Y.,” Oct. 15, 1970, Casetext, https://bit.ly/4hrIu3L (accessed July 7, 2022).

[3] “Opinion: State v. Natividad, Supreme Court of Arizona,” Casetext: Smarter Legal Research, https://casetext.com/case/state-v-natividad (accessed June 23, 2022).

[4] Professional Standards and Ethics for California Court Interpreters, 5th Edition, (San Francisco: Judicial Council of California, 2008), 3; emphasis added.

[5] Debora Charles, “Certified Courtroom Interpreters: A Quick Guide to Oklahoma’s Program,” OBJ, www.okbar.org/barjournal/aug2019/obj9006charles (accessed Sept. 4, 2023).