Court interpreting

63

Court interpreting it would seem, was expressly intentional’ (ibid.:

150). Hale (1997) documents consistent patterns
of register variation in the courtroom, with
The term ‘court interpreting’ is widely used interpreters between Spanish and English in
to refer to any kind of legal interpreting, but Australian courts raising the level of formality
the courtroom is in fact only one of several when interpreting into English and lowering it
contexts in which legal interpreting may when interpreting it into Spanish.
take place. Non-courtroom contexts include Modern court interpreting has made limited
interpreting in police departments (Krouglov progress in its brief history. This is primarily
1999), customs offices, immigration authorities due to the complex nature of legal interpreting
(Barsky 1996; Inghilleri 2003, 2005a; see also and the judiciary’s ambivalent attitude to inter-
asylum); and barristers’ chambers. Courtroom preters in the courtroom. On the one hand,
interpreting, however, has come to occupy a the law is reluctant to accept interpreters as
more prominent position and has received professionals who are capable of rendering
more scholarly attention than other types of linguistic messages efficiently (O’Tool 1994b),
legal interpreting. and therefore as officers of the law (Morris 1995;
The history of official court interpreting, as Colin and Morris 1996). On the other hand, it
we know it today, is fairly short. Although it insists on treating the product of interpreting
started with the famous war trials which took as a legally valid equivalent of the original
place in Nuremberg between November 1945 utterance. Morris (ibid.: 29) reports that in
and October 1946 and in Tokyo between June the English-speaking world, ‘[t]ape recordings
1946 and November 1948, the experience of of non-English utterances produced in the
these trials gave rise not to court interpreting as courtroom hardly ever exist; written transcripts
such but to simultaneous interpreting (de Jongh are almost never provided’. Challenges to the
1992), which is only one of the techniques that interpreter’s performance and credentials,
may be used in court under certain circum- including challenges by defence lawyers, are
stances. Irrespective of the range of techniques not uncommon. For example, in Holliday v.
it uses, what most distinguishes court inter- State in Fulton County, Georgia (reported in
preting from other types of interpreting is its Eustis 2003), lawyers for Holliday argued that
close attention to ethical issues which arise from the interpreter left utterances uninterpreted
the function of the courtroom. In terms of which could have led to a different result. The
interpreting strategies, this tends to be reflected court hearing the appeal conceded that errors
in an insistence on fidelity, impartiality and in translation are inevitable but rejected the
confidentiality. In theory, the evidence given by appeal on the basis of available evidence. The
a witness has to be preserved in its entirety, not lawyers commented that they might consider
only through a close rendering of the sentences hiring independent interpreters to monitor the
and words but also the ‘ers’ and ‘ums’ uttered by performance of court-appointed interpreters.
the speaker. The argument here is that what is The basis of the argument was that if lawyers
at issue is a human being’s life and liberty, and wish to object to errors in interpretation, they
that the court judges the credibility and veracity have to do it when the errors are made rather
of an individual by his or her demeanour to than after the event.
a large extent. Nevertheless, Gonzalez et al.
(1991) and O’Tool (1994a) have observed
that prosodic elements and paralinguistic The provision of court
features are frequently left uninterpreted, and interpreting as a legal right
that a witness’s testimony suffers accordingly.
Shlesinger (1991) similarly reports a general For justice to be done, the legal system admin-
tendency on the part of court interpreters to istering it has to be seen to be fair. One of
‘grammticize’ ungrammatical utterances and the essential tenets of a fair trial is the legal
observes that ‘the overriding tendency of the presence of the accused during the trial. The
interpreter to delete a false start may in fact concept of ‘legal presence’ includes ‘linguistic
lead to the omission of a self-correction which, presence’ (Gonzalez 1994; Colin and Morris

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 64 Court interpreting

1996). This means that the accused must be able The judiciary has long failed to recognize the
to hear and understand what other witnesses complexity of legal interpreting and has conse-
are saying and has to be able to follow the quently expected the court interpreter to act as
legal proceedings. Consequently, a person in a conduit, transmitting messages between the
a foreign country (be it a tourist or a worker), accused, witnesses and members of the court
an immigrant who does not have adequate without any intervention, and irrespective of
command of the official language of the court, linguistic and cultural differences among partic-
the aboriginal populations in countries such ipants (Softic 1993; Tsuda 2002). This situation
as Australia and the United States, members has been further exacerbated by a lack of adequate
of minority groups in multi-racial societies training in the techniques of court interpreting
such as Malaysia and Singapore, not to mention (see training and education) and a general
the speech or hearing-impaired population (see lack of definition of the court interpreter’s role,
signed language interpreting), should all leading to deficient interpreting in many cases
be legally entitled to an interpreter. (Edwards 1995; Hale 2004). As Roberts-Smith
The right to an interpreter in a court setting (1989: 71) has observed,
is a legal issue which has received much
attention but remains supported by little legis- Untrained interpreters, far from facili-
lation in most countries (Hertog 2002; Tsuda tating communication, can cause many
2002). At an international level, the right to an problems. Their language skills may be
interpreter is provided for in the International deficient, they may not have the necessary
Covenant on Civil and Political Rights, in appreciation of relevant cross-cultural
the European Convention on Human Rights, differences, they may not have interpreting
and in the American Convention on Human skills (as opposed to conversational
Rights; it was also expressed in procedure at the abilities); their choice of words may be
Nuremberg and Tokyo Trials. At the national imprecise and consequently misleading
level, very few legal systems have formalized and they may have a tendency to flavour
this right. In Australia, for instance, only the the interpretation with their own views
state of South Australia has protected it by a and perception of the facts.
statute. In other states with a large population
of immigrants, for example Victoria and New Incompetent interpreting has therefore con­
South Wales, the provision of an interpreter tributed to the fact that interpreted evidence is
is made or withheld at the discretion of the rarely perceived as truthful or reliable (Carroll
trial judge. Common practice in both states 1994). Consequently, rather than benefiting
indicates that interpreters are provided as a from the availability of an interpreter, and in
matter of course, but this does remain a addition to the difficulty of understanding the
question of common practice rather than legal procedures of the court, a linguistically-handi-
right (Access to Interpreters 1991). capped individual may be faced with the added
A witness who is only partly fluent in the dilemma of whether to use an interpreter and
language of the trial may be denied an inter- risk being labelled as evasive, unresponsive and
preter on the premise that limited knowledge untrustworthy.
should not be the passport to an unfair
advantage before the court. However, a witness
might sound fluent in a language and be disas- The mechanics and logistics of
trously ignorant of the linguistic subtleties and court interpreting
cultural traits of that language. A report by the
New South Wales Commission in Australia thus Broadly speaking, court interpreting is con-
acknowledges that ‘[t]he notion of advantage cerned with enabling the client (whether the
deriving from the use of an interpreter arises accused, witness, or other participant) to
out of a fundamental misunderstanding of understand what is going on in the courtroom.
the nature of interpreting’, and that ‘there is Different forms of interpreting, and translation,
no evidence that . . . any advantage is actually may be used to achieve this end. An inter-
secured’ (Multiculturalism and the Law 1991). preter might be asked to carry out consecutive

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 Court interpreting 65

interpreting when a witness is in the dock, To enable communication to proceed

simultaneous interpreting when the witness or smoothly in the courtroom, all interlocutors are
accused is listening to another testimony or generally instructed to speak in the first person,
following other events in the courtroom (from which entails ignoring the physical presence
depositions to sentencing), liaison interpreting of the interpreter. The place where the inter-
outside the courtroom with council, and even preter is seated therefore plays a significant
chuchotage (i.e. whispered interpreting) in some role in aiding or hindering the communication
cases (see conference interpreting, his- process. Seating the interpreter too far away
torical and cognitive perspectives for an creates acoustic difficulties for the court and the
explanation of various modes of interpreting). interpreter alike. Conversely, seating him or her
For instance, Shlesinger (1989b) reports that too close to one party can give the impression
chuchotage was used in The State of Israel v. Ivan that the interpreter is not impartial.
John Demjanjuk (1987–8) to render the entire Impartiality, which is the raison d’être of
proceedings into Ukrainian for the defendant. court interpreting, places a special constraint on
Court work also includes sight translation the court interpreter, who has to distance him-
of documents produced in court. Moreover, or herself from witnesses and their immediate
it is not uncommon for the bench to ask the families, even when they themselves are in
interpreter, over a short recess, to produce a need of the interpreter’s services. The task is
written translation of an exhibit, a transcript made more difficult by the fact that judicial
of a telephone conversation or subtitles for a concern for guaranteeing the impartiality of
video recording. The various methods of inter- the interpreter has given rise to the principle of
preting used in the courtroom all have their excluding the interpreter from pre-trial confer-
shortcomings. For instance, O’Tool (1994b) ences and the viewing of relevant documents
observes that consecutive interpreting leads to prior to the commencement of a trial (Gonzalez
lack of spontaneity and naturalness of commu- et al. 1991: 177, 291). The judicial view that
nication, and Morris (1995) reports the unease prior knowledge of the case could affect the
created in the courtroom by acoustic inter- interpreter’s impartiality is, to some extent,
ference from whispered interpreting. In the UK understandable. However, it seems unreal-
Lockerbie trial (2000–2001), the two Libyan istic to expect an interpreter to walk into a
defendants complained to the bench that they courtroom without any knowledge of the topic,
were unable to follow the four simultaneous terminology or chronology of the case and still
interpreters appointed by the United Nations. be able to perform efficiently, especially given
The simultaneous mode inevitably means that the fact that backtracking and requests for
the interpreter has to anticipate information clarification on the part of the interpreter are
and deliver the interpreted utterances at a fast generally discouraged and seen as interrupting
pace. The interpreters were equipped with a court procedures. It is also unrealistic to expect
‘slow-down’ button in this case, but the bench an interpreter to remain totally unaffected by
was concerned about and drew the prosecu- the narratives recounted in court. The Acholi
tor’s attention to the fact that the interpreters interpreter Julian Ocitti reportedly broke down
were lagging behind. One strategy used by during the trial of Ugandan opposition leader
simultaneous interpreters to avoid lagging Dr Kizza Besigye in April 2006 as one state
behind is anticipation, but this is problematic witness narrated how he killed ten people.
in the context of the court: unlike conference WBS Television reported that ‘[c]ourt was then
interpreting, courtroom interpreting requires adjourned for a ten minute break to allow her
attention to detail, chronology and facts that [the interpreter] to compose herself, before
may seem redundant to the interpreter. The another interpreter was brought in’ (Ntimbal
shortcomings associated with different modes 2006). Similar traumatic experiences of court
of interpreting suggest that while allowing interpreting have been reported in connection
communication to take place in the courtroom, with the Truth and Reconciliation trials held
interpreting often slows down the court proce- after the fall of apartheid in South Africa (Baker
dures, especially in cases where inexperienced 2006a: 32) and cases of child abuse (Brennan
interpreters are used (Roberts-Smith 1989). and Brown 1997: 62).

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 66 Court interpreting

Like other professionals such as lawyers, and Taylor 1994). In an attempt to bridge the
court interpreters are bound by professional gap between ‘generalist’ academic training in
ethics, and there should arguably therefore be interpreting and the specific standards and skills
no need to exclude them from certain proce- required in the professional world, serious steps
dures in order to ensure their impartiality. Like have also been taken in Australia, the United
conference interpreters, they too need to be States and elsewhere to provide certification of
briefed about the material they have to deal court interpreters. Berk-Seligson (1990/2002)
with, the topics likely to be raised and the points out that no matter how ethically aware
documents to be sight-translated. Prior access court interpreters might be, quality inter-
to information in court interpreting is among preting can only be guaranteed through formal
the most hotly debated issues between the court training. In Australia, the Community Relations
interpreting profession and the judiciary. Commission in the state of New South Wales,
In addition to these difficulties, court inter- the largest provider of translating and inter-
preters also have to contend with extra-linguistic preting services in the country, introduced a
pressures such as speed, interrupted delivery, mandatory one-week induction programme for
stress and mental fatigue, and the extreme variety practising court interpreters in 2000, in a bid to
of topics raised and issues discussed. These, ensure better quality.
and the wide range of interpreting modes that The situation is also changing in South
have to be mastered and used skilfully (consec- Africa where a Diploma in Legal Translation
utive, simultaneous, chuchotage and sight and Interpreting was introduced at UNISA
translation), all contribute to the complexity of (University of South Africa) in 1998 (Moeketsi
court interpreting and highlight the importance and Wallmach 2005). In Japan, the eight High
of specialized and regular training for court Courts which maintain a list of more than
interpreters. 3000 ‘qualified’ interpreters have been offering
a general two-day induction course since 1997
(Arai 1997). Tsuda (2002) describes a Master’s
The training of court interpreters programme in Translation at the Osaka
University of Foreign Studies which has a strong
A number of countries such as the United States component of court interpreting.
and Australia have made some effort to ensure Finally, it is worth noting that AIIC (the
the availability of formal training, examinations, International Association of Conference Inter-
and certification systems for court interpreters. preters) does not recognize even regular court
In the United States, the Court Interpreter Act interpreting experience as equivalent to its ‘200
of 1978 and its amendment in 1988 sought conference days’ mandatory requirement for
to regulate the profession (Angelelli 2004). membership. There is no international associ-
community interpreting in Australia tends ation that represents court interpreters, but the
to involve a great deal of legal interpreting, and United States does have an online network of
this has led to professional ethics becoming judicial interpreters (NAJIT). The International
an integral part of the induction process for Association of Forensic Linguists (IAFL)
newly accredited interpreters. Australia has also dedicates a great deal of its work to courtroom
pioneered the provision of leaflets on ‘How to discourse and the practice of court interpreting.
Work with Interpreters’; these aim to educate
the public to make the best use of interpreters. See also:
There are virtually no academic institutions asylum; community interpreting, confer-
that provide training in court interpreting specifi- ence interpreting, historical and cog-
cally. However, some colleges, particularly in the ­nitive perspectives; conference inter-
United States and Canada, offer short courses preting, sociocultural perspectives;
specifically designed for court interpreters. With dialogue interpreting; signed language
the emergence of translation studies as a fully- interpreting; training and education.
fledged academic discipline, more attention is
now being paid to the need to provide full Further reading
academic training in court interpreting (Laster Altano 1990; Berk-Seligson 1990/2002; Gonzalez

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