Speaking English in Court

Great Debates
1

i am from tucson, az, which is less than an hour from mexico. suffice it to say we have a lot of spanish speakers here, whih is why the following event particularly shocked me.

i was serving on a jury in a child molestation case (a whole other story). they called the mother up to testify, and the court was informed that the woman could not speak English. it turned out that this was not entirely true, as she would sometimes jump in before her translator had stopped translating, but that’s not really important.

what was shocking to me was the way in which the mother’s testimony was related. to start with, the mother was interviewed by a detective who spoke only english. a translator was therefore necessary. the detective’s interrogation of the mother was taped and sent to be transcribed.

at this point, the transcribers take down the detective’s questions and the mother’s TRANSLATED answers, so her original testimony, in spanish, is lost.

then, in court, the lawyer cross-examining the mother says “did you not say
[quotes english translation of original testimony]
to detective o’flanagan?” the court translator translates that question into spanish—so of course she has to re-translate the mother’s testimony, from english back into spanish.

what’s the mother to do? it’s highly unlikely that the translator could re-translate the testimony back into the EXACT spanish words originally spoken by the mother. so the mother has to agree or disagree with having made statements that she never necessarily uttered but that the court is using as incontrovertible recorded evidence.

oh, and did i mention that the translator is a white woman clearly speaking spanish as a second language?

so here’s the question: what the hell do we do about this? if even TUCSON hasn’t found a sensible way to accommodate spanish speakers, what’s the rest of the country up to?

2

In England it is compulsory to tape all interviews made for the purpose of invetigating a criminal act. Consequently, the quality of the translation could be tested from the tape, and what a person actually said in their original language continues to be available.

3

One of my law professors had worked for a time as a legal aid lawyer representing people in INS asylum hearings. Once, she had an elderly Afghani couple as clients. In her interviews with them, they brought along a relative (who spoke broken English) to translate. When she asked them, “why did you flee Afghanistan?”, the response would come back along the lines of “we were persecuted for our religion.”

A few days before the hearing, my professor wanted to make sure she knew what her clients’ story was, so she splurged some of legal aid’s money on a professional translator and interviewed them again. This time, the story came out as “the heathens were attempting to bury the light and destroy the flower of Islam”, etc., etc.
My professor told them that if they told their story that way, they wouldn’t get asylum. She then crossed her fingers for the hearing itself.

At the hearing, the INS provided an official translator. The hearing officer asked the Afghani couple why they fled Afghanistan. The response, through the official translator, was a beautiful and heart-wrenching story of a simple family clinging to their simple faith in the face of heartless and soulless forces. The hearing officer granted asylum, and came off the bench to shake their hands, saying “your long nightmare is over.”

Afterwards, my professor ran into the official translator in the hallway, and confessed that the hearing went better than she hoped. The translator said, “Well, I couldn’t tell the story they way they said it. They used to be my neighbors in Kabul.”

Funny story, but also pretty scary.

Sua

4

As you’ve noticed, Bick, this is a common issue with bilingual testimony. Unofortunately, there is no good answer. It’s impractical to expect judges and jurors to translate for themselves, so there must be someone to act as a transalator. And yes, some things do indeed get lost in the translation. A good attorney will recognize this problem and deal with it, clarifying the testimony until the translation is close enough in meaning to the foreign-language testimony that everyone understands.

5

scarier (IMHO). I had a client who was severely hearing impaired, had a measured IQ around 75 - 80, had lived for most of her life (from about 8 - 24 or so) in state institutions for those with serious emotional problems, was on trial for an arson. She’d lit some paper towels on fire and burned a hole in the carpeting in her apartment.

She was sent to the forensics’ center to be tested for competence. I was asked to provide an assist on the pre sentencing phase (so the forensics report had already been admitted, trial had been held etc.). The court appointed lawyer was a decent guy, reasonably intelligent etc, but simply didn’t have a whole lotta time.

I read the forensics report. In it, there was a statement by the pyschiatrist that the client was deliberatly ‘faking’. This “assesment” came from the interpreter (and was acknowledged as such). The interpreter’s job in this case was to translate the question to the client and translate the client’s answer. The pyschiatrist’s job was to assess the answers. I pointed this out to the attorney, we included and emphasized it in our report to the judge.

Since it came at the sentencing phase, it was dismissed, she was sentenced to 10 years in prison.

6

minty: i understand that translation is necessary. what i find ridiculous is taking a woman’s testimony in Spanish, translating it to English, then translating it back into Spanish. why not just record the original Spanish testimony along with the translation, so that “re-translation” is not necessary? sounds like the U.K. already has a handle on this.

7

Assuming that anything important was lost in the translation, you’re looking at an example of bad lawyering. The opposing attorney should have insisted on exactly what you propose. (Your description sounds to me like we’re talking about cross-examination here.)

When the cross-examining attorney asks a question in English like “Didn’t you say to the police ‘[English statement]’?” the obvious answer is “No.” What she said to the police was “[Spanish statement],” which should then be translated directly for the court, along with her reply to the question.

But again, maybe nothing of import was lost in the translation, so it’s possible the lawyer knew nothing would be gained by objecting.

8

I’ve represented refugees seeking asylum, and I’m here to tell you that the INS deliberately uses the minor contradictions introduced by translation variations to deny asylum to many who deserve it. Some examples:

I had a Haitian client some years ago who was accused of being “evasive” because he couldn’t answer the question translated from English “How far away is Bizoton from Port-au-Prince?” The hearing officer was getting angrier and more suspicious by the second, before we finally intervened–at his “discretion,” which he could have decided not to exercise–and suggested that he at least ask the question “Where is Bizoton?” Which produced the reasonable and accurate answer that it was INSIDE Port-au-Prince; it’s a neighborhood in the city. But up till we got our licks in, the HO was prepared to label our client a liar.

The current practice of the INS is even more despicable: at the “credible fear” interview held at airports and harbors, they have a translator ON THE PHONE. The INS officer types up the translator’s version of what the alien says. After the interview, the asylum-seeker is required to sign a statement in ENGLISH affirming that the translated answers put in front of him IN ENGLISH are true and accurate (!!!) No lawyer is permitted to attend this interview, or to advise the alien ahead of time. Then, the INS won’t give the asylum seeker’s lawyers a copy of this statement until he/she has prepared and submitted a full asylum application. So, if the phone translator made a translation error, you have NO CHANCE to ask your client about apparent incongruities in his or her story until he’s signed another piece of paper which probably has some minor differences. These minor differences are then used to impeach the alien’s testimony.

I had a client who spent an extra eleven months in detention because the credible fear interviewer mistranslated his statement “I had something to drink” as “I was drunk.” Every subsequent interview and statement afterwards made it clear that he’d had one beer and that he was embarrassed to go home because his family opposed drinking totally, not because he was “drunk,” but the immigration judge insisted that he had “changed his story” and this proved that he wasn’t telling the truth about two cousins, a sister, a brother, and brother-in-law who were murdered by the government. The same judge insisted, by the way, that a language spoken by over 900 million people worldwide didn’t have any dialects or regional differences.

If you ask the INS about this, their answer is: 1) the alien is seeking a benefit (yeah, the right not be tortured to death is a “benefit”) and 2) the fact that we provide any interpreters at all, even badly paid and incompetent ones, shows how noble and generous we are—before we send your client back to hell.

9

Do any of the states in the U.S. have provisions for trials to be run in Spanish? (not just translations, but the judge, the lawyers and the jury all understand Spanish and the whole thing goes in that language?)

10

The official language of the City of El Cenizo, Texas is Spanish. All local government business must be conducted in Spanish. The municipal court also conducts all legal precedings in Spanish.

11

[Devil’s Advocate]

To be fair, the INS, I imagine, is slightly overwhelmed by the sheer numbers of people seeking asylum. While it’s easy to point to individual cases and say “How horrid!”, keep in mind that the INS needs to treat aliens as a group. The logistics of trying to satisfy all the needs of each individual case is simply impossible with the resources the INS gets, so a universal standard is set and followed. It’s heartless and cruel, but unless we’re willing to spend billions of dollars more each year, the INS can’t be cuddly and accomodating.

As for courts… well, same thing. There’re always going to be difficulties to overcome, and frankly, I think court fees are staggering enough.

[/Devil’s Advocate]

12

Spoofe: even immigration lawyers agree that many asylum-seekers are making it up. However, my call is not for the INS to become “cuddly and accommodating” but for the INS to observe rules of fundamental fairness. One of the simple things they could do, since they must detain asylum seekers ANYWAY, would be to give them several days to obtain counsel and then let those attorneys be present for the “credible fear” interview. Too cumbersome? Then try to imagine being examined in a foreign language you don’t speak, on a matter of life and death, by a hostile and suspicious government employee, without having a lawyer present.

The second thing they could do would be to observe ordinary procedural rules in the asylum hearing process. Believe me, the biased and unfair way asylum hearings are conducted would outrage you. Alas, the public never gets to see these. The INS argues that they are “protecting” the alien’s privacy. Just the way that Soviet Russia did: with secret trials. In many cases these trials are actually conducted inside the prison, so the public literally cannot get in to observe the trials, even if the alien wants them there.

The third thing they could do would be to set minimum competency standards for the persons who serve as immigration judges. Time after time the appeals board, and the real US courts reverse IJ decisions, emphasizing that the “judge” has simply ignored the testimony or has made completely unfounded logical inferences from it. Here’s two examples:

An immigration judge in Atlanta decided that a female asylum seeker was lying because she reported being raped three or four times a day during interrogation. He argued that this was not physically possible. Perhaps he hasn’t read ANY of the testimony from war crimes trials for the former Yugoslavia.

Immigration Judge Kim ruled that being beaten with sticks and forced to drink your own urine was a normal part of a government interrogation in Sri Lanka, and was not grounds for seeking asylum.

I’m sorry that I don’t have a cite to Frederic Tulsky’s detailed article on this subject in the San Jose Mercury News (10/18/2000), which is based on a multi-year FOIA request that surveyed four years of INS decisions, but the massive discrepancies the study showed in IJ decisions can’t be explained, unless you posit incompoetence or prejudice. For instance, one judge named William Jankun, “in the period analyzed granted asylum in just 23 of the 1,569 cases he heard, 1.47 percent.” This guy was an INS lawyer before he went on the bench…

Just down the hall was Judge Terry Bain, formerly in private law practice. “In the period analyzed, Bain granted asylum in 53 percent of the cases she heard”…which seems like a pretty stak contrast.

These cases get assigned randomly, so it’s not like Bain only got the folks from, say, Yugoslavia, while Jankum got the Swedes trying to claim persecution.