JOHNSON wrote last week that the international courts face hurdles in dealing with different languages. Some courts with limited linguistic purviews, like the International Criminal Tribunal for the former Yugoslavia, deal well with language. Their translation and interpretation mechanisms run smoothly. The task is naturally tougher for courts like the International Criminal Court, where needs change with each case, and often involve languages with fewer skilled interpreters and other resources available. Success rates aside, ensuring justice through adequate language services forms an ideological cornerstone of international courts. Technology, time and money are accordingly devoted to translation and interpretation.
Domestic courts in America should take a leaf from this book. Several courts, especially in diverse cities and in the south, do offer multilingual services. (Johnson was delighted to find a sign advertising interpretation in 19 languages in a New York courthouse in January.) Behind the friendly sign, though, the scene in the courtroom isn’t so rosy. Speed and quality lag behind their international counterparts, even in Spanish. Both of us have witnessed awkward, stilted courtroom exchanges—in Los Angeles, southern Arizona, New York and Connecticut—in which Spanish-English interpretation was so slow and confused that nobody knew how to proceed fairly. Whatever one’s stance on language politics in America, it’s apparent that half-baked language services can seriously harm the project of justice.
Take, for example, testimony by a witness who speaks only Spanish. The court-provided interpreter must translate the lawyers’ questions from English to Spanish, then the witness’s answers back from Spanish to English. Questions and answers are often long and complex. When the interpreter is unable to manage simultaneous interpretation—whether due to the interpreter’s limitations or the courtroom’s technology—the result is often a paraphrasing. This is, in short, bad. Given the fine-toothed comb that lawyers will later take to the record, the low fidelity of much in-court interpretation causes problems. A word added, omitted, or even just slightly different from the witness’s actual testimony can wreak havoc on a case.
This is not to mention the role that these issues play in the administration of justice elsewhere in our legal system. Interpretation and translation are often central to proceedings for deportation, asylum, or welfare removal. Non-English speakers in these kinds of hearings “have a right to competent translation services” (as the Ninth Circuit, a federal appeals court, put it). But the same problems that plague interpretation of witness testimony often arise here as well. And even when a court knows the interpretation was faulty, relief is only granted when “better translation would have made the difference in the outcome of the hearing”. Proving this sort of prejudice is an extremely high bar to clear, meaning that only the worst instances will be corrected.
These issues aren’t just hypothetical. He v Ashcroft was heard by the Ninth Circuit. A Chinese alien, He Wang, appealed an adverse deportation and asylum decision in part by claiming defective interpretation. The appeals court noted (quite soberly) that “some of the evidentiary problems in this case appear[ed] to stem from interpreting difficulties.” The interpreter that had been provided to Mr He spoke Mandarin, while Mr He spoke the distinct Chinese language of his hometown of Fuqing, which is mutually unintelligible with Mandarin. (The court had no Fuqing interpreters.) Though Mr He apparently indicated that he did speak some Mandarin, his actual ability was limited. The two had difficulty even communicating with one another. The resulting interpretation of Mr He’s testimony was bad enough for the court to remark that “some portions of the transcript read like ‘Who’s on First.’” To its credit, the court recognized that “faulty or unreliable translations can undermine the evidence” on which a decision is based.
It’s great that the Ninth Circuit identified the problem. Now American courts should work toward solutions. What can they learn from international courts? In courts that regularly work with non-English speakers, simultaneous interpretation should become widely available for some common languages. (Even if it's present in some courts, it isn't everywhere.) Simultaneous interpretation, when done well, moves proceedings along quicker. More important, it reduces paraphrasing and increases fidelity. But it’s not foolproof. A second court stenographer should transcribe non-English testimony along with English. If there’s an important discrepancy between the two, the non-English transcript will provide a definitive original source. Right now, only English is transcribed, and only English goes into the official record—so if the interpreter gets it wrong, the record is wrong. In providing these resources, courts probably can’t be overly ambitious. But in most communities there are obvious places to start, like Spanish or Mandarin.
Of course, both of these recommendations require serious improvements in courts’ technology and capacity. It’ll be impossible to reach every language and dialect, so someone like Mr He might still be out of luck. Some upgrades will be expensive. Most American courts weren’t built with today’s technology in mind. But baseline improvements are possible. The international courts’ language apparatuses show that it’s possible to integrate newer interpretation services into a modern courtroom effectively. The costs are worth it. Taxpayers are already paying for interpretation services that are often inadequate (and hardly cheap). And as interpretation and transcription services mature, proceedings will in turn become quicker, smoother, and (most important) fairer. Due process is at the heart of any judicial system. Courts should be committed to ensuring justice regardless of language.