Preserving facts, form, and function when a deaf witness with minimal language skills testifies in court.

• Author: Tuck, Brandon M.

INTRODUCTION I. THE POWER OF LANGUAGE IN THE COURTROOM II. TODAY'S SIGN LANGUAGE INTERPRETERS IN THE COURTROOM A. Constitutional and Statutory Rights to an Interpreter B. Best Practices for Sign Language Interpretation in the Courtroom 1. Staffing the Courtroom with Competent Interpreters 2. Ensuring Interpreter Accuracy a. Interpreter Ability to Retain Facts, Form, and Function b. Interpreter Ability to Repair Errors 3. Ensuring CDI and ASL Interpreter Accuracy III. INTERPRETATION AS TRANSLATION: AN ALTERNATIVE METHOD FOR PRESENTING MLS WITNESS TESTIMONY A. Introducing Translations into Evidence B. Applying the Translation Evidentiary Model to CDI-Interpreted Testimony CONCLUSION INTRODUCTION

The multilingual landscape continues to expand in social and business sectors, but in the judicial arena, it is still an uncomfortable fit. Interpreters are a relatively new fixture in American courts. Judges and trial attorneys spend enormous energy sharpening their use of language, but most consider interpreters too blunt an instrument to accurately convey their exact intent across language barriers. Parties to the litigation harbor similar concerns about their accessibility to the proceedings when language passes through what they consider an interpreter's sieve. For example, at the onset of the Nuremberg trials following World War II, Reich Marshal Hermann Goring famously responded, after being asked if he wanted counsel to represent him against charges of war crimes, "Of course, I want counsel. But it is even more important to have a good interpreter." (1)

Interpreters often provide non-English speakers their only access to court proceedings. (2) Equally important, they provide the court with its only access to non-English-speaking defendants and witnesses. This Comment addresses one particular class of non-English speakers: deaf adults who are called to testify as witnesses in civil or criminal court but who lack both spoken and sign language proficiency. (3) Michele LaVigne and McCay Vernon write that although many deaf adults succeed as doctors, lawyers, stay-at-home morns, and factory workers, the confluence of a restrictive environment, a poor or failed attempt at education, and sometimes other biological limitations deprives some deaf people of the opportunity to acquire a language foundation in either English or sign language. (4) These semilingual or nonlingual deaf adults are often termed as having Minimal Language Skills (MLS). (5) Generally, these individuals are highly visually oriented, low functioning, functionally illiterate, and uneducated; they often go through life using tidbits of the majority language (whether it is English or American Sign Language) and systems of gesture. (6)

How should a court accommodate this type of witness? Many court practices grew out of how the courts learned to deal with MLS deaf defendants in the criminal system. The case of Donald Lang, a deaf man accused of two murders in Chicago, is a well-publicized example of courts wrestling with this issue. (7) Lang came from a poor black neighborhood in Chicago, never attended school, and never learned even a first language. (8) Despite having what could have been the best attorney-defendant fit in lawyer Lowell Myers, (9) who was himself deaf, Lang's situation confounded the Illinois system. In no fewer than nine reported decisions, the courts wrestled with how to accommodate Lang. (10) The crux of the issue was whether Lang was unfit to stand trial because he was linguistically incompetent and therefore unable to assist in his own defense. (11) As a result, Lang fought for years against indefinite confinement in a mental institution despite his lack of any mental illness. (12)In a similar case, the Louisiana Supreme Court approved of the involuntary commitment of James Williams, also deaf and nonlingual, without a trial because he lacked the ability to effectively communicate. (13) These are not merely the results of yesteryear's application of justice; courts continue to wrestle with deaf semi-lingual or nonlingual adults' linguistic incompetency today. (14)

It may seem a bit unbelievable that, in this digital and enlightened age, native-born Americans can live with parents and siblings, attend school each day, and yet emerge as adults who lack a simple and fundamental foundation in English or some other language. LaVigne and Vernon explain why one must first understand the basics of deafness, language acquisition, and interpretation before appreciating the extent of nonlingualism that can occur within our own schools and communities:

[O]ur experiences at counsel table and on the witness stand have taught us that without a step-by-step discussion of the hows and whys of deafness and language acquisition, a legal argument that a defendant did not understand because he never fully acquired language is likely to be met with skepticism, if not incredulity. This skepticism does not arise from some antideaf sentiment but from the counterintuitive quality of the subject matter. For those of us who have heard all of our lives, and especially for those of us who use words for a living, the idea that a person could be left without a language is beyond imagining. (15) LaVigne and Vernon "start at the beginning" with a survey of the relevant facets of deafness that lead to linguistic incompetence. (16) They then counsel how courts can be better prepared to accommodate MLS deaf participants.

When even the most skilled American Sign Language (ASL) interpreters cannot fully bridge the linguistic and cultural gaps with an MLS party or witness in the courtroom, courts may then use a unique type of intermediary interpreter to facilitate communication. This intermediary, known as a relay interpreter or a certified deaf interpreter (CDI), (17) is most often a deaf adult who possesses extraordinary visual-gestural communication skills and abilities (18) by virtue of native deafness and specialized training, enabling her to effectively bridge linguistic barriers. If the court's ASL interpreter is unable to facilitate communication with a semilingual or nonlingual party or witness in the courtroom, the court may pair the ASL interpreter with a CDI. (19)

For example, imagine an exchange between an attorney and an MLS witness. When the attorney asks her question in spoken English, the hearing ASL interpreter provides that question to the CDI in American Sign Language; the CDI then tries to communicate with the witness using whatever means she can. The CDI and the MLS witness then go back and forth until they develop some mutual understanding, some shared corpus of gesture that temporarily creates a communicative bond between the two. When the CDI feels confident that the witness both understands the questions and has provided an understandable response, she then uses sign language to formulate that response and presents that signed formulation in ASL to the ASL interpreter, who interprets that utterance into English and voices it audibly for the record. Such an exchange may look like this:

Attorney Question to MLS Witness: Did you take the train home that night?

ASL Interpreter to CDI: THAT NIGHT, TRAIN HOME YOU-RIDE? (20)

CDI to MLS Witness: [Here, the CDI would engage the witness in visual-gestural but nonlingual fashion to first arrive at the basic concepts in the question. For example, assume the CDI has previously developed the concept of evening from the previous questions and represents that concept in visual-gestural fashion by using an arm to represent the horizon, followed by a clasped hand to represent the orb of the sun, the falling of the clasped hands below the horizon arm, and a closed-eyes flailing gesture indicating darkness. Also assume the CDI has a recent method to identify this particular night, perhaps the night of the incident in question upon which the witness is testifying. Once established, the CDI can then set up the spatial identity of the MLS witness's starting point, build her end point, and ask if he took a train home. Each of these spatial referents will require significant development and may rely on features, functions, or activities of buildings (e.g., the place where the MLS witness works, shops for food, or sleeps) and other objects (e.g., physical descriptions of the train, procedures for paying at a turnstile or showing a ticket or pass to the conductor, or one's physical stance while riding the train). (21)]

MLS Witness to CDI: [Here, the MLS witness responds in visual-gestural form, but not in a succinct chunk of linguistic information; instead, the witness and the CDI together build an understanding through gesture for certain acts or objects. The witness describes standing near a turnstile, looking around the ground, but finding no small round and flat items in his pocket to drop into the box. He then actually removes his wallet from his pocket, pretends to look inside, and shrugs with a disappointed face. Next, he mimes looking around on the floor near the box, his eyes darting all around. Last, he mimes that he zips up his coat, wraps his scarf tightly around his neck, and walks into the distance. The response, though, would not likely be bundled up together in a single stream of communication. The response would also likely be unintelligible to most others in the courtroom, (22) including the ASL interpreters, because the miming and gesturing would be so nuanced and, in a sense, deaf-centric, that it would require the specialized skills of the CDI to not only understand the communication, but also to elicit it in a form that achieves the communication's objectives. More likely, the CDI would have ascertained tidbits here and there during long turn-taking sessions to develop this response.]

CDI to ASL Interpreter: TRAIN STATION, THERE ARRIVE. TOKEN NONE, MONEY NONE, SO LOOK-NEAR-GROUND++. FIND NONE, SO BUNDLE-UP, WALK++.

ASL Interpreter to Attorney: When I got to the train station, I...