Working with Translators and Interpreters in Oregon

Melanie DeLeon-Benham Certification and Training Coordinator for Court Interpreting Services, Oregon Judicial Department

Cristina Castro Court-certified interpreter and translator, Oregon Licensed Private Investigator

MBA CLE Seminar April 3, 2014

 

Court Interpreter Services (CIS) Quick Reference for Attorneys Working in Multnomah County  It is your responsibility to contact CIS directly to request an interpreter for every scheduled and/or cancelled court hearing. A request given to court staff is not a request to CIS. How to contact us: • Send requests to: [email protected] • Requests may be submitted via the online form found here: http://courts.oregon.gov/OJD/OSCA/cpsd/InterpreterServices/ScheduleAnInterpreter.page • You may also scan below to be taken directly to the online request form:

When emailing an interpreter request, you will be asked to include the following information: The name and role of the person needing an interpreter; the case number; charges (if applicable); the nature of the proceeding; the time, date, and estimated length of the proceeding; and the language to be interpreted. Supplemental Local Rule 7.071 (Multnomah only) states that it is the responsibility of the party needing the interpreter (or their attorney) to request interpreters for each need directly with CIS. Additionally, subsequent updates (including cancellations of requests) should be sent promptly to CIS. Uniform Trial Court Rules: 7.070 Foreign Language Interpreters: CIS requires at least 4 court days’ notice for interpreter requests. 7.080 Interpreter's Requests for Information: To be provided to neutral parties (interpreters). Cancellation Fees: When cancelled less than 1.5 days before the hearing date, certified interpreters (Spanish, Russian, Vietnamese, ASL, etc.) are paid for the entire block of time they were hired for. Noncertified language interpreter cancellation rates vary from 1 hour to all day. ADA Accommodations: For public access requests, please contact the court’s TCA or ADA coordinator

Questions? Call the CIS supervisor on duty at 503-986-5855.

 

Legal English by Cristina Castro Presented to the Court Interpreters Association Of Oregon Salem, Oregon, 19 June 1999 Legal discourse has an ancient historical tradition of linguistic obscurity justified on grounds of technical precision and clarity. For instance, legal proceedings in England were conducted in French until 1362 although the majority of people in England were not native speakers of French. In the following centuries the legal profession continued to develop an extensive vocabulary based on Greek and Latin that is not accessible to the lay person. There are three features that stand out in English Legal Discourse: 1) 2) 3)

it has a highly specific and formal domain; it is highly specialized; and it has a rigid and complex structure.

Clark Cunningham illustrates these features of legal English and legal discourse in general by using the concept of translation as a metaphor for legal representation, since lawyers must ‘translate’ for their clients a system of communication unknown to them. He cites three factors that make translation necessary: 1) 2) 3)

the client does not identify with the legal system; the client belongs to an ethnographic and cultural group not represented in this domain; and the client has no voice in the courtroom.

The client Cunningham refers to is an American and a native speaker of African American English. Frequently, the defendants and witnesses the court interpreter translates for in court do not share the language, the culture or the legal system of the attorneys and judges. I suggest that the discourse that Cunningham ‘translates’ for his client requires further ‘translation’ in the case of a non-English speaking client. To this end, I have identified the following aspects of Legal English: I)

Grammatical, lexical and syntactic traits; and

II)

The nature of Legal English Discourse

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I)

Grammatical, lexical and syntactic traits

A)

Latin terms and expressions: these terms can be of two types, true words in Latin (prima facie, bona fide, habeas corpus, ad hoc, in limine, etc.), and terms adapted to English (absconding, to impugn).

B)

Words of French or Norman origin: salvage, demur, lien, parole, etc.

C)

Doublets, or redundant constructions consisting of two terms that are synonyms or partial synonyms: false and untrue, null and void, force and effect, have and hold, each and every, fit and proper, full and complete, sole and exclusive, aid and abet, last will and testament, fair and equitable, cease and desist, etc. Some linguists hold that these doublets are due to the very fact that English law was ‘in’ French for many centuries. Thus, redundant expressions were created that held both a term from the Germanic or Anglo-Saxon root (untrue, full, etc.) and one from the Latin-French-Normand root (false, complete, etc.), in order to make the concepts clear to all. It has also been suggested that with the advent of the printing press, this system of expressing the same concept using two words from different roots became institutionalized.

D)

Adverbs, prepositions and conjunctions: hereinafter, thereunder, herewith, under, subject to, pursuant to, whereas, heretofore, etc.

E)

Verb usage: lawyers don’t tell judges “I think” or “I believe”, they have to say: “I submit...”. On the other hand, judges don’t say to the defendant “I have decided that you are guilty of...”, they say “The Court finds that...”; they don’t say “do you know”, they say “do you understand that you have waived your right to appeal...”.

F)

Repetition of words or syntactical constructions that other languages avoid: The “defendant” is always referred to as the defendant, whereas in other languages many other synonyms may be used within the same discourse to refer to the same party to the actions (defense, prosecutor, buyer, seller, lessor, lessee, etc.).

G)

Legal terms: terms which are used exclusively within the language of the law: remand, committal, impugn, abscond, etc.

H)

Everyday terms with specific legal meaning: to bring (an action, a case); discharge (one’s duty); to find (a judge’s decision); information (to formally charge); to provide (“the law provides...”).

I)

Polysemic terms: any (all, some, any old, any one), court (judge, building, administrative body, judicial body, jurisdiction, the Law), bench (physical, judge, tribunal), release (of information, from jail, from certain duties), order, motion, etc.

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J)

Jurisdiction specific terms: court interpreters in the U.S. are called upon to interpret as much as 51 codes (50 states and federal), as well as many local variations within these codes (Juvenile, Municipal, etc.). For example: Rape vs. Sexual Assault; Aggravated Murder vs. Murder I. Some codes organize felonies by number, others by letter. These differences seem to hold great significance to the professional, but none to the lay participant if recently arrived from another state, let alone country.

II)

The nature of Legal English Discourse

Lay people who participate in court proceedings tend to use the narrative style of speaking. Narrative discourse is comprised of four tasks: 1) 2) 3) 4)

initiating the story; reporting events within the story; conveying the point within the story; and accomplishing an action by means of the story.

This style is often constrained and restricted by rules of legal discourse that prescribe structured arguments, questions and answers rather than narratives. Lawyers use argumentative discourse, which has three parts: 1) 2) 3)

position, where the speaker states not only the way things are, but the way they should be; dispute of a position; and support of a position.

Both of these styles of discourse are present in the American courtroom. The witness may answer in a narrative fashion during direct examination, but may not do so during cross-examination, where the witness is instructed to answer ‘yes’ or ‘no’. The crossexamination process becomes more complex because attorneys and judges have a tendency to ask compound questions and questions that contain a double negative, such as: “Mr. X, were you in the bedroom or the living room at the time that your friend, Mr. Y, may have entered...he is your friend, isn’t he?; or: “Isn’t it true that you didn’t go to the bar with Jim that night?” Judges frequently ask defendants: “Are you a citizen of Mexico or the United States?”. Clearly, the witness or defendant can not answer any of these questions ‘yes’ or ‘no’ and arrive at anything that approximates the intended meaning. Presumably, the questions are posed in this manner because the examining attorney expects a specific answer; because the attorney wishes to convey to the jury a certain perception of the witness; or because the attorney wants the jury to focus on a certain item and not others. Juries are called upon to evaluate the truthfulness and credibility of witnesses, people that they have never seen or heard in their lives before. Judges instruct them to use their experience and common sense to decide whether the manner in which a witness testifies is credible and straightforward. Thus, the most powerful weapon an attorney has while waging verbal war with a witness is the

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manipulation of question form. This question form needs to be accurately rendered into the target language by the court interpreter. Court interpreters have been subjected to endless instruction regarding precision in conveying the register of language used by the speaker, but register is defined and recognized by topic and context specific vocabulary, while style is not connected to specific contexts. Speakers choose among styles to communicate, and their choices have social meaning. The styles of legal discourse that jurors and other lay participants hear in court is both the narrative and the argumentative. Further, the register of language used in court is not that known as English Legalese. Legalese is the written discourse of judges, lawyers and legal doctrine scholars. Only a limited number of ‘legalese’ expressions is heard in court during trial. These utterances are seldom directed at the lay witness whose testimony is being interpreted. Court interpreters are extremely interested in Target Language-English lexical equivalence, and this serves them well as to accurately conveying registers. On the other hand, lexical equivalence does not guarantee the preservation of speaker style since the choice of style may have different social meanings for interpreter, witness and attorney. In recent years research has begun to focus on spoken legal discourse. William O’Barr conducted a study in the courts of North Carolina, identifying four varieties of spoken legal discourse: 1)

Formal legal language: the variety used in the courtroom that is closest to written legal language, spoken by judges and lawyers and characterized by long sentences with complex syntax and professional jargon;

2)

Standard English: the variety of English most often spoken by lawyers in the courtroom and closest to the variety spoken in the American classroom, characterized by a lexicon that is more formal than that used in everyday speech;

3)

Colloquial English: spoken by most lawyers and some witnesses, it is the variety closest to everyday, ordinary spoken English;

4)

Subcultural varieties: varieties spoken by segments of the society that differ from normative speech, in O’Barr’s study this varieties include African American English and the variety spoken by low income whites.

Although given speakers may not use all four varieties in court, they may switch within the limits of their linguistic repertoire which depends on the situation. This has bearing on the court interpreter’s knowledge of the varieties of spoken English. If the court interpreter is not a native speaker of American English and if the interpreter has no formal training regarding English variation, would the interpreter be able to faithfully convey the variation in register, style and dialect into the target language? The court interpreter style choices may change the social meaning of the participants’ choices, as it may change their perceptions.

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In multiethnic societies people of different ethnic and linguistic backgrounds interact daily in public settings such as U.S. courtrooms, bringing with them their value systems, ethnicity , language and ideology. Their ethnic and individual discourse styles meet with social constraints imposed by the legal domain. Thus, the court interpreter needs to convey nuances of power and manipulation bidirectionally while staying out of the social interaction. Many of the concepts presented in this social interaction are culture bound. Is the interpreter aware of the nuances and cultural differences that the speaker’s choice of language style represent? Is the interpreter capable of either managing the interaction without altering it, or ask to be disqualified from interpreting for a given person in a given speech situation? In a criminal court trial professionals speak under rather stringent norms and in a language that may seem detached from the point of view of defendants and witnesses. Yet this speech variation or style they use may be the means the legal community uses to impose order and meaning in the interaction in the court room, and not a deliberate attempt to express a detached attitude. Defendants and witnesses often are put off by what they perceive to be a detached attitude. This is relevant to court interpreters since the interpreter’s style choices may change the social meaning of the of the participant’s choices, as it may change their perceptions. The American system of law is adversarial, thus, Legal English is adversarial. Embedded in this adversarial setting are issues of power and manipulation, which are expressed through language. The court interpreter needs to convey these nuances of power and manipulation bidirectionally while staying out of the social interaction. My heart goes out to us all.

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Bibliography: Alcaraz-Varó, Enrique. 1998. El inglés jurídico. Barcelona: Ariel Berk-Seligson, Susan. 1990. The Bilingual Courtroom: Court Interpreters in the Judicial Process. Chicago: U Chicago P. Castro, M. Cristina. 1994. Interlingual Communication and Pragmatic Alterations in Legal Discourse. Unpublished MA thesis. ASU. Coulthard, Malcolm. 1977. An Introduction to Discourse Analysis. London: Longman. Cunningham, Clark D. 1992. The Lawyer as Translator, Representation as Text: Towards an Ethnography of Legal Discourse. Cornell Law Review 77.12981387. Kedar, Leah, ed. 1987. General Introduction. Power through Discourse, v-viii. Norwood: Ablex. Linell, Per. 1991. Accommodation on trial: processes of communicative accommodation in courtroom interaction. Contexts of accommodation: developments in applied sociolinguistics. Ed. by Howard Giles, Justine Coupland and Nikolas Coupland, 103-30. Cambridge: Cambridge UP. Milroy, James. 1984. Sociolinguistic Methodology and the Identification of Speakers’ Voices in Legal Proceedings. Applied Sociolinguistics. Ed. by Peter Trudgill, 51-72. London: Academic Press. O’Barr, William. 1982. Linguistic Evidence: Language, Power and Strategy in the Courtroom. New York: Academic Press Inc. O’Barr, William and John Conley. 1990. Litigant Satisfaction versus Legal Adequacy in Small Claims Court Narratives. Language in the Judicial Process. Ed. by Judith N. Levi and Anne Graffam Walker, 97-131. Law, Society and Policy Series. New York: Plenum.

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MARIA CRISTINA CASTRO Interpreter & Translator 3439 NE Sandy Blvd., #624 Voice & Fax: (503) 281-1502 Cell: 503-702-5580 [email protected] www.cristinacastro.us

Translation to be analyzed: ES MI DEBER INFORMARLE QUE ANTES DE HACER UNA DECLARACION: 1.

Ud. tiene el derecho de mantenerse en silencio.

2.

Cualquier cosa que Ud. diga puede ser usada en su contra en una Corte de Ley.

3.

Ud. tiene el derecho de hablar con un abogado y de que este presente durante la interrogacion.

4.

Si Ud. no tiene la manera de pagar un abogado, la corte le asignara uno sin costo alguno para Ud.

ENTIENDE UD. SUS DERECHOS? ENTENDIENDO SUS DERECHOS TODA VIA DESEA HABLAR CON MIGO? A.

Misspellings: Departmento [should be] = departamento interrogacion [should be] = interrogación

B.

Back translation:

IT IS MY DUTY TO INFORM YOU THAT BEFORE MAKING A STATEMENT: 1.

You have the right to keep yourself in silence.

2.

Anything you say may be used against you in a court of law1

3.

You have the right to speak with an attorney and that he presents2 during the questioning3

1

Although "Corte de Ley" LITERALLY back translates into "court of law," it should be noted that the expression is not used by native speakers of Spanish. In other words, "Corte de Ley" is itself an awkward rendition into Spanish of an English language concept. A court of law in Spanish is expressed simply by the using the word "court." Further, these words would not be capitalized in Spanish.

4. If you don't have a way to pay an attorney, the court may assign/will assign4 one without any cost for you. DO YOU UNDERSTAND YOUR RIGHTS? UNDERSTANDING YOUR RIGHTS ALL WAY5 WISH TO SPEAK WITH ME6? C.

The concept of "rights:"

This is very difficult for native speakers of Spanish when simply presented as "derechos." Although the word "derechos" does in fact mean "rights" in its broadest sense, Spanish tends to be far more specific. One would think "the rights to what?" One Spanish legal dictionary defines "derechos" as "in its plural form, derechos commonly refers to the amount paid for a service." Other examples: derechos de autor (copyright), derechos civiles (civil rights)... and continues for about two pages, listing specific derechos. Thus, specificity is required. Perhaps: "derechos según el fallo de Miranda" could be used to refer to Miranda rights, if that is the case. Derechos constitucionales = constitutional rights; derechos procesales = trial rights, due process rights. From a cultural/linguistic view, Miranda itself requires definition, since people from other legal systems may not be aware of it or its meaning. The concept of having the "right" to not respond to questioning by the authorities may be foreign in some Spanish speaking countries and well known in others since Spanish, much like English, is a language spoken by peoples of many diverse cultures. 2

"Este" is the demonstrative pronoun in Spanish. "esté" is a form of the verb "estar" (to be). Thus "...y de que esté presente durante..." would be "... and for him to be present during...", whereas "... y de que este (the aforementioned attorney) presente durante..." would probably mean "... and that he presents (who knows what) during...". Again, awkward at best. Of course, "este" means "East" as well, but this meaning is so far from the context and the syntactical structure that it is improbable that it may be understood as a cardinal point. 3 The word interrogación (NOT interrogacion) does exist in Spanish. However it is seldom used to mean "questioning" within a legal/law enforcement context (it is mainly used in context of “question” as in “question mark”). The word most frequently used in legal discourse is "interrogatorio." Some Spanish legal dictionaries don't even list "interrogación," although "interrogatorio" is always included. 4 "Asignara" is not listed under misspellings because, although it probably is a misspelling of "asignará" since all diacritical marks are missing in the original Spanish language document, the word "asignara" does exist as a separate entity in Spanish. In fact, for the native speaker the whole point of diacriticals is to differentiate words that would otherwise be identical in form and different in content. "Asignara" is the Subjunctive mood of the verb in Spanish. This is best reflected in English by the use of the "IF" end of an "IF - THEN" clause. Thus, "asignara" sort of sets the Spanish speaker thinking: If the court were to assign.... Whereas "asignará" is the future tense of the good old indicative: Shall assign or will assign. Difficult call. 5

"Toda" and "vía" (not "via") are Spanish words. Thus, I can not really call this a misspelling, although I strongly suspect it is, and it should be "todavía" which means "still" or "yet." 6 Again, a misspelling? "With me" is one word in Spanish: "conmigo." "Con" is a word in Spanish (with) but "migo" is not. Probably would be taken to be a typo by a native speaker.

Payment Protocols for Scheduling Spoken Language (not ASL*) Interpreters

Start

Are the interpreting services for a party or for sworn witness testimony in a court proceeding?

YES

NO The OJD, CIS and Mandated Payments do not provide or pay for spoken language interpreters for any of the following: • Victims - unless for a sentencing hearing or while giving sworn testimony • Parent(s) / guardian(s) of youths being prosecuted as adults • Attorney-client communication (except incidental communication in court) • Court-ordered services provided by providers outside of the OJD • Persons wishing to observe a court proceeding • Grand jury • Jury duty (except for potential jurors for jury orientation)

Are the interpreting services for the parent(s) or guardian(s) of a youth in a juvenile proceeding? NO

Is the non-English speaker talking to an OJD employee or hearings officer?

YES

NO Are the interpreting services for a volunteer in a court-run program whose work is overseen YES by an OJD employee or hearings officer? NO

Is the interpreter for a victim at sentencing? YES NO

Is the interpreter for a statutorily mandated Civil or Domestic Relations arbitration? (ORS 36.400) YES NO Is the interpreter for a mediation program that, per local court rules, takes the place of mandatory Civil or Domestic Relations arbitration? (ORS 36.405)

OJD Does Not Pay**

YES

NO

YES

OJD Pays

**OJD does not pay. Whoever pays the English-speaker is likely responsible for scheduling and paying for the interpreter.