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The Use of Interpreters During Court Proceedings

My practice, being based in South Florida, affords me the opportunity to see foreign language interpreters at work in court on a daily basis. Although Spanish is the second most popular language in South Florida, there is a constant need for interpreters who speak other foreign languages so that a witness or a defendant can be properly understood in court.

Interpreters are sworn to interpret truthfully and accurately on a word-for-word basis. Interpreters do not have the right to explain or to embellish testimony. Their job is difficult but clear: they must be impartial and they must say exactly what the witness or defendant is saying, in the first person. For example, an interpreter cannot say “he [the witness] said….”

In federal courts, there is legislation known as the Court Interpreters Act, found at 28 United States Code Section 1827. This law states that interpreters must be appointed in certain situations, as a constitutional right of the accused. While the trial judge has some limited discretion on whether to appoint an interpreter, as a practical matter, the judge has an absolute obligation to appoint a foreign language interpreter – or a sign language interpreter – where a defendant has difficulty with the English language.

In my career, I have had the pleasure of trying many cases with co-counsel who were native speakers of the language being interpreted. Unfortunately, on too many occasions, though the interpreters were certified by the federal courts, their interpretations were not accurate according to the native speaking attorneys. I have seen objections made to portions of interpretations which were not accurate, or which might have been accurate but did not convey the meaning or essence of what the witness was testifying to. In such situations the interpreters almost always insisted that their interpretations were accurate. Yet, when the foreign language speaking attorney explained to the judge – usually out of the presence of the jurors – the judges who are really interested in fairness, have often allowed the matter to be clarified by the attorney re-asking the question in a different manner so that the witness’s meaning is beyond question.

Although almost all court interpreters are well-meaning, skilled and ethical (my wife is a certified interpreter), they are human and can make mistakes and, in some cases, can change the outcome of a trial through a conscious or unconscious misinterpretation or misplaced emphasis. That is why I always want a native speaker present as part of my defense team, so that I can be advised as to any problems or misinterpretations and correct them quickly. This is essential in any case in which an interpreter is used, since anything said by the interpreter is considered testimony by the witness or defendant, and can be quoted directly or argued during closing arguments. Defendants are not permitted to bring their own interpreters to interpret for the court. Of course, they may have their own interpreters present. But the “official” interpreters are usually employed by the court and always appointed by the court.

Every facet of a trial is important. When English is not the native language of a defendant, it is critically important that the interpreter be a consummate professional so that the defendant is not further prejudiced due to his or her inability to speak English. A good criminal defense lawyer understands this and will protect your rights during every phase of a trial.

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