“Have you ever been arrested?” the attorney asked in English. A Spanish interpreter translated the question and then the witness’s response: “No.”

“Have you ever had a criminal charge?” the interpreter spoke in Spanish, and then they translated the response: “Only two rapes in the car in 2012, but I paid for them.” Stunned silence hung in the courtroom until the attorney stammered, “Two rapes? What do you mean?”

Via interpretation, the witness explained, “Yes, I was pulled over twice for speeding in 2012, but I paid the fines.”

Confused, the attorney replied, “But you said something about raping someone?”

The blood drained from the witness’s face as the interpreter spoke. “No, no, no!! I did not rape anyone! I never said that!”

“But you said you had two rapes in 2012?” Verbal chaos continued until the attorney asked for clarification on the word the interpreter used for rape: violación.

“Does violación have more than one meaning, Mr. Interpreter?”

“Oh ... yes, it can mean a legal violation or a rape. I guess he meant a traffic violation.”

INTERPRETATION AS ACCESS TO JUSTICE

Nearly 68 million Americans speak a language other than English at home, according to the U.S. Census Bureau in 2019.[1] In Oklahoma, 2019 census records report that more than 10% of the population aged 5 years or older speaks a language other than English at home – an increase of more than 26% between 2010 and 2019.[2] According to the Migration Policy Institute, as of 2021, nearly 140,000 Oklahomans (ages 5 and up) speak English “less than very well.”[3] In addition, an estimated 194,000 Oklahomans have hearing disabilities, many of whom use American Sign Language (ASL) as their mode of communication.[4]

These statistics indicate that for 200,000 to 300,000 Oklahomans, true access to justice hinges on the ability to bridge a language barrier by way of competent and readily available interpretation. Without a skilled interpreter (and an attorney who ensures the interpretation is correct and consistent), this huge sector of our state’s population simply cannot exercise its legal rights and responsibilities as residents of this state.

As Oklahoma trial attorneys who zealously advocate for our clients and justice, we must be familiar with the use of interpreters and be prepared for when an interpreter steps into the courtroom. This article provides some background on Oklahoma interpreter qualifications, as well as tips for using interpreters skillfully in the courtroom.

OKLAHOMA INTERPRETERS AND HOW TO HIRE ONE

Oklahoma courts recognize two levels of credentialing for non-sign language courtroom interpreters. Qualified and authorized interpreters may be either “registered” or “certified” based on how many testing levels they have passed. Registered interpreters have passed the first level of basic testing, while certified interpreters have first passed both the registration exam and the far more advanced certification exam.[5] While a registered interpreter is registered as fluently knowing both languages, a certified interpreter has been specifically tested in live interpreting. Separately, certified ASL interpreters are tested and certified for qualification to interpret in the courtroom.[6] All these credentialed categories are authorized to interpret in Oklahoma state courts; however, even a registered interpreter may recommend you use a certified one whenever possible for trial.

All three lists of Oklahoma courts’ credentialed interpreters – registered, certified and certified ASL – are publicly available on the OSCN website by navigating to “Programs” and then “Certified Courtroom Interpreters.”[7] To hire an interpreter, simply navigate to the desired list, find the target language needed, and then use the personal contact information to reach out to interpreters directly, as they work as freelancers and not directly for the court system.

THE BASICS OF USING AN INTERPRETER

One of the most common causes of confusion for practitioners who are unfamiliar with interpreting services is whether to address the witness or the interpreter. It feels natural to speak to the interpreter about the client or witness – after all, the interpreter is the one who is directly talking to the other person. However, trained interpreters are taught to interpret exactly, as if the interpreter themself is not present. This means that those speaking through an interpreter should talk normally to one another in the second person and not directly to the interpreter.

To illustrate, if I wish to speak to my client, I may look to the interpreter and say, “What are her parents’ names, and how many siblings does she have?” The interpreter is trained to translate that sentence exactly to the client, in its third-person state: “What are her parents’ names, and how many siblings does she have?” Obviously, that would cause great confusion, as the witness would think I were asking her about an unnamed third person’s family members.

Rule one, then, is to speak directly to your witness in the second person. Don’t directly address the interpreter when trying to speak to the witness.

Rule two is to speak in short phrases and take many breaks. As talented as credentialed interpreters are, there is only so much content they can remember to then, in turn, translate to the target language. If you spew a long paragraph of information without allowing them a break to interpret, they will likely lose some of the details or forget some part of your lengthy oration. Don’t hamstring yourself by not giving your interpreter a chance to interpret thoroughly and accurately along the way. Rule two is equally important for the witness to follow! When beginning your communication through an interpreter, you can assist yourself and the interpreter by instructing the witness to take many breaks between sentences so that the interpreter can keep up. The interpreter will thank you, and you will have prevented potential inaccuracies in the translation.

Rule three is to practice with an interpreter whenever possible, for both your sake and the sake of your client or witness. Communicating through an interpreter can, at first, feel like a clunky and unnatural process (see rules one and two again), which means the only way to become good at it is to practice. It’s hard to remember to take breaks for interpretation while you’re focusing on your examination, and this is particularly true if you understand some of the target language. It is easy to forget to let the interpreter speak when you understand that “sí” means “yes” in Spanish, and you’re ready for your next question. For this reason, everyone ­– particularly bilingual speakers or those who understand some of the language – ought to practice using an interpreter. Practice is the path to mastering the art of pausing frequently and at natural points for interpretation.

This third rule is also vital for avoiding courtroom confusion, like the introductory example, where the interpreter misunderstood the client’s use of a word. When you practice with an interpreter, you give the interpreter and the witness the important opportunity to use the wrong words and misunderstand each other then figure out the misunderstanding long before either sees a courtroom.

ADDRESSING INTERPRETING ERRORS IN THE COURTROOM

Credentialed interpreters are talented and skilled individuals who have an extremely taxing job, constantly switching from language to language for hours without a break. As a result, while they are generally very competent, errors like the introductory example do occur with some frequency. How you, as a practitioner, handle the error can win over or alienate the jury, judge and witness. Accordingly, here are some options and suggestions for addressing errors or miscommunications during live interpretation, starting with the most positive and effective solutions.

Craft Questions to Prevent Errors

Most errors can be prevented by asking well-crafted questions that leave no room for confusion or miscommunication. The easiest ways to do this are to 1) eliminate pronouns, 2) keep questions as short as possible and 3) use the simplest, most direct language possible. Much interpretation confusion is caused by long-winded questions peppered with 25-cent words when simple sentences work best.

• Don’t: “Had you two ever encountered those law enforcement officials previously?”
• Do: “Had you or your husband ever met those police officers before the car crash?”
• Even Better: Ask the “Do” question above twice – once about the witness and once about her husband.

Rephrase the Question

               If it seems your witness didn’t quite understand the translated question, try again using different and more direct language. Similarly, if you’re not sure the interpreter translated correctly, use different, simple words to ask the same question and verify the answer. Use the simplest, most straightforward words possible. A basic rephrasing of the question often remedies any confusion.

Ask the Interpreter for Verification

If incorrect interpretation seems to be a reoccurring issue, you may (with the judge’s permission) ask the interpreter directly to clarify the witness’s answer. This should never be the first solution when you suspect an error, but it can be helpful after you’ve tried the solutions above.

Why should you not employ this solution right away? There are several reasons. First, it calls into question the interpreter’s ability and performance, which can alienate your interpreter, as well as the judge and jury, who are likely sympathetic to the interpreter and their challenging job. It is poor practice to call the interpreter out on their first perceived error. Second, speaking directly to the interpreter and asking them to verify opens a line of uncontrolled communication between the interpreter and the witness. By inviting the interpreter to converse with the witness, you risk losing control of what is said and how it is said.

Finally, the judge may challenge your request to speak to the interpreter, so you must be positive that the error occurred (either by having personal knowledge of the language or by having another interpreter sitting with you to alert you to inaccuracies). In rare circumstances when interpretation errors continue and cannot be controlled by the first two strategies, asking the interpreter for verification may be your best move.

• Example: You believe the witness stated it was the morning of March 6, but the interpreter said, “the middle of the night of March 6.”
• Try: “Mr. Interpreter, could you please verify that last answer and confirm the witness stated it was the middle of the night on March 6?”

Object

Only object after you have tried every other strategy without success. Objecting to the interpretation is inherently hostile toward the interpreter and is likely to be viewed negatively by your judge and jury. Also, much like objecting to a nonresponsive witness without trying other examination strategies, objecting to the interpretation smacks of your inability to control the examination. Objecting is a last resort when the interpretation is continuously and egregiously incorrect.

AMERICAN SIGN LANGUAGE: SPECIAL CONSIDERATIONS

ASL is a complex language with its own grammar and syntax, and a great deal of linguistic meaning is imparted by facial expressions and body language, not just hand signs.[8] As a result, working with an ASL interpreter is a skill and an art all its own that can only be mastered through practice.

One great difference between spoken and sign language interpretation is that, in some cases, the best interpretation solution for a witness with hearing loss is to employ two interpreters: a deaf interpreter and a hearing interpreter, who translate together as a team. This need can arise when the witness experiences additional challenges to hearing loss, such as having other disabilities, lacking support and resources for language learning in childhood and coming from a non-English-speaking culture.[9] [10]

To provide an example of this, this author once had a deaf client who immigrated from a Spanish-speaking country to the U.S. as a child. Due to poverty and cultural misunderstanding, this client was not truly educated in any robust language until middle school and was not taught ASL until his teenage years – education deprivations that left him delayed in cognition and speech. The client used a combination of some ASL and unique “home signs” to communicate. Because of the significant communication difficulties he faced, the author’s legal team used a set of interpreters for trial: one deaf interpreter, who could communicate most fluently with the client in his hybrid sign language, and one hearing interpreter, who could interpret ASL to English adeptly.

CONCLUSION

Competent courtroom interpretation is necessary for due process and access to justice. It directly affects the rights of hundreds of thousands of Oklahomans. By knowing where to find credentialed interpreters and practicing the tips and strategies shared in this article, all Oklahoma lawyers can advocate fiercely and skillfully for their non-English-speaking clients.

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ABOUT THE AUTHOR

Elissa Stiles, supervising attorney at Rivas & Associates, serves as chair of both the OBA Immigration Law Section and the Tulsa County Bar Association Immigration Section. She has focused her practice on immigration litigation since graduating from the TU College of Law in 2019.

 

 

 

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ENDNOTES

[1] U.S. Census Bureau, “What Languages Do We Speak in the United States?” https://bit.ly/3Rfvrap.

[2] U.S. Census Bureau, “Language Use in the United States: 2019,” https://bit.ly/47NQAhk.

[3] Migration Policy Institute, “Oklahoma,” https://bit.ly/47KEm9u.

[4] Fox 23 News, “Oklahoma student named spokesperson for Deaf Awareness Week,” https://bit.ly/46ynL7B.

[5] Oklahoma State Courts Network, “Certified Courtroom Interpreters,” https://bit.ly/3SY4GbJ.

[6] Id.

[7] Id.

[8] National Institute on Deafness and Other Communication Disorders, “American Sign Language,” https://bit.ly/3QRnerC.

[9] Carla Mathers, “Deaf Interpreters in Court: An accommodation that is more than reasonable,” The National Consortium of Interpreter Education Centers, 2009.

[10] Michele La Vigne and McCay Vernon, “An Interpreter Isn’t Enough: Deafness, Language, and Due Process,” Wisconsin Law Review, 2003:843.