Court interpreting: linguistic presence v. linguistic absence.

• Author: De Jongh, Elena M.

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Court interpreting involves a linguistic and cultural performance whose objective is to overcome the language barriers and cultural misunderstandings that could cause non-English-speaking defendants to be linguistically absent from their own legal proceedings. High-level proficiencies in the source and target languages and cultures, including knowledge of geographic variation, an understanding of the legal process and related terminology, the ability to manipulate the various discourse styles used in the courtroom, along with interpreting skills and adherence to standards of ethics and professional conduct, are essential in protecting a non-English speaker's right to due process.

Demographic changes in the United States, case law recognizing the right of non-English speakers to accurately interpreted court proceedings, and state and federal legislation governing interpreting services in legal proceedings have resulted in a growing need for qualified, competent, certified court interpreters. Through the use of authentic examples taken from court transcripts, this article aims to demonstrate how a non-English-speaking defendant's linguistic presence in his or her own case is inextricably linked to the degree of accuracy of the interpretation. Although the focus is on the Spanish-speaking population in the U.S., the concepts discussed are applicable to court interpreting in other languages.

Linguistic Presence

A number of courts have ruled that a defendant's physical presence in the courtroom is not enough to constitute legal presence; for a defendant in criminal matters to be "meaningfully present," everything that is being said in the case must be communicated in a language he or she can understand. This concept, known as "linguistic presence," requires the services of a qualified foreign-language interpreter for non-English speakers and a sign language interpreter for the hearing-impaired. (1) In State v. Natividad, 526 P.2d 730 (1974), the Arizona Supreme Court, en banc, held:

The inability of a defendant to understand the proceedings would be [not only] fundamentally unfair but particularly inappropriate in a state where a significant minority of the population is burdened with the handicap of being unable to effectively communicate in our national language. A defendant's inability to spontaneously understand testimony being given would undoubtedly limit his [or her] attorney's effectiveness, especially on cross-examination. It would be as though a defendant were forced to observe the proceedings from a soundproof booth or seated out of hearing at the rear of the courtroom, being able to observe but not comprehend the criminal processes whereby the state had put his [or her] freedom in jeopardy. Such a trial 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 [or her] trial. (Lewis v. United States, 146 U.S. 370 (1892); Negron v. New York, 434 F.2d 386 (2d Cir. 1970)).

A Growing Need

U.S. Census data and statistics on interpreter use in the U.S. district courts document the growth in foreign language speakers and in the need for foreign language court interpreters in the United States. Research on recent court interpreter decisions from state and federal courts indicates that non-English speakers are appearing in courts across the country with increasing frequency and that many courts are struggling to cope with a shortage of qualified interpreters. (2) In "Language Use and English-Speaking Ability: 2000," U.S. Census data indicate that the number of people aged five and over who spoke a language other than English at home grew by 38 percent in the 1980s and by 47 percent in the 1990s. In 2000, 18 percent of the total population aged five and over, or 47 million people, reported that they spoke a language other than English at home. Approximately 2,000 unique languages were identified within the borders of the United States. The population of individuals who spoke a language other than English was 29 percent in the West; 20 percent in the Northeast; 15 percent in the South; and nine percent in the Midwest. Generally, the highest concentrations of non-English speakers were in states that border Mexico, the Pacific Ocean, and the Atlantic Ocean. (3)

The number of non-English language speakers at least doubled in six states from 1990 to 2000. Spanish speakers grew by about 60 percent and Spanish continued to be the non-English language most frequently spoken at home in the U.S., followed by Chinese (2 million people), French (1.6 million), and German (1.4 million).

Of the 20 non-English languages most frequently spoken at home, the largest proportional increase was for Russian speakers, who nearly tripled from 242,000 to 706,000. The second largest increase was for French Creole speakers (the language group that includes Haitian Creoles), whose numbers more than doubled from 188,000 to 453,000. (4)

Spanish was spoken more than any other language group in all regions of the country, according to 2000 U.S. Census figures. And although the number of Spanish speakers grew in all regions, more than three-fourths of that growth was in the West and South, which combined had about three times the number of Spanish speakers (21 million) as the Northeast and the Midwest combined (7.1 million). California had the largest percentage of non-English speakers (39 percent), followed by New Mexico (37 percent), Texas (31 percent), New York (28 percent), Hawaii (27 percent), Arizona, and New Jersey (each about 26 percent). The largest percentage increase between 1990 and 2000 in the population who spoke a language other than English at home occurred in Nevada (193 percent), which also had the highest rate of population increase during the decade. The increase in Florida was 65.6 percent. Georgia's non-English-speaking residents increased by 164 percent, followed by North Carolina (151 percent), Utah (110 percent), Arkansas (104 percent), and Oregon (103 percent). (5)

In Florida, 23.1 percent of the population in 2006 was reported to speak a language other than English at home. (6) Hispanics accounted for almost half (1.4 million) of the national population growth of 2.9 million between July 1, 2005, and July 1, 2006. California had the largest Hispanic population of any state as of July 1, 2006 (13.1 million), followed by Texas (8.4 million) and Florida (3.6 million). Texas had the largest numerical increase between 2005 and 2006 (305,000), with California (283,000) and Florida (161,000) following. (7)

U.S. District Courts

Statistics from the Administrative Office of the United States Courts for the years 2000-2005 document an increase in the number of cases requiring interpreters in the federal courts. In 2005, for instance, district courts reported that interpreters were required in 227,461 events, compared to 223,966 events reported in 2004. Moreover, the number of languages requiring interpretation rose from 106 in 2004 to 111 in 2005. Spanish (214,355 events) remains the language most often interpreted in the courts, accounting for 94 percent of all reported events, followed by Mandarin (1,792 events), Arabic (1250 events), Vietnamese (863 events), Korean (796 events), Cantonese (745 events), Russian (610 events), French (417 events), and Foochow (409 events).

Courts along the Southwest border are in "crisis mode," contending with criminal caseloads that have skyrocketed since the late 1990s. (8) In 2005, "more than one-third of all federal felonies prosecuted in the U.S. came from five of the 94 judicial districts--the southwest border courts of the District of New Mexico, the Southern and Western Districts of Texas, the District of Arizona, and the Southern District of California." (9) In New Mexico's federal district courts, criminal felony cases have climbed 287 percent since 1997. The average felony caseload (felony case per authorized judgeship) nationwide is 87. In the District of New Mexico, which ranks first, the average is 405. The Southern District of Texas ranks third, with an average of 326. That district's Laredo division carries 2,800 felony cases --an average of 1,400 per judge. (10)

Legal Precedents

In U.S. district courts, the right to sign language and foreign language interpretation is recognized by case law as protected especially by the Fifth, Sixth, and 14th amendments to the U.S. Constitution. The Fifth Amendment, which guarantees fundamental fairness and equal protection under the law, states, in pertinent part: "No person ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law...." The Sixth Amendment, the major federal source of the right to an interpreter, states: "In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense." The...