Language in the Judicial Process

Book Review

The Bilingual Courtroom: Court Interpreters In The Judicial Process
By Susan Berk-Seligson. Chicago: University of Chicago Press 1990 Pp. xii, 299; 15 tables, 4 figures, 6 appendices. ISBN 0 226 04373 8

The Practice Of Court Interpreting
By Alicia Betsy Edwards. Amsterdam/Philadelphia: John Benjamins Publishing 1995 Pp. xiv, 192; 4 appendices. ISBN 90 272 1603 7

Reviewed by Jack Lonergan
University of Westminster
London UK

Jack Lonergan is Professor of Applied Linguistics in the Faculty of Law, Languages and Communication at the University of Westminster, where he is involved with community interpreter training and the provision of specialist language courses in some two dozen languages.

Both the books under review share a concern that the practice of court interpreting should be professional. Professionalism imposes on interpreters the duty to perform ethically and competently; it also brings with it the right for interpreters to be afforded proper status. Just how professional competence and status can be attained is of course a difficult issue, made more complicated by problems in recognising what competent court interpreters really do, how they should do it, and the effects they have on the judicial process.

For many practitioners and observers, the key to professionalism lies in accreditation or certification of some sort. At national level the ideal can be described. In the US the Court Interpreters Act 1978 stipulates that the Director of the Administrative Office of the United States Courts “shall prescribe, determine, and certify the qualifications of persons who may serve as certified in courts of the US in bilingual proceedings.” In England and Wales the Administration of Justice Act 1976 states (at Section 17) that the court has a duty to appoint and pay for an interpreter where an individual has insufficient English to take part in court proceedings. At supranational level, a judgement of the European Court of Human Rights in 1989 made providers responsible for the standards and competence of the interpreter service provision; this was the result of an appeal by a US citizen imprisoned in Austria (see Kamasinski Case 9/1938/153/207).

However, personal experiences and anecdotal evidence from linguists, lawyers and observers have shown that in many courts these admirable aims are frequently not met. The Bilingual Courtroom and The Practice of Court Interpreting make welcome but quite different contributions to the study and practice of court interpreting, and both in their way point to good practice.

Alicia Betsy Edward’s The Practice of Court Interpreting “describes the normal flow of work, how to train for it, how to find it, how to prepare for a case, how to do the work (and…) improve our work” (p. xi). She offers some sound advice to court interpreters in the book, using a chatty style in a reference handbook approach. A brief sketch of the work in the opening chapter leads to Chapter 2, which deals with case preparation by offering “a general understanding of the trial process in the area and court where we work” (p. 17), with key but commonplace legal terms or phrases highlighted–such as probable cause, status hearing, discovery package, or plead to the indictment. The theme continues in Chapter 3 but the content switches to acquiring and using reference books and dictionaries–with ten legal dictionaries asterisked in a further reading list of 59 dictionaries and glossaries. A further fourteen useful references are given in Chapter 6, which offers practical advice on the translation of legal documents, while Chapter 7 looks at the more specific task of tape transcription and translation.

Edwards is always at pains to let the reader feel that although the task may at times seem daunting, there is always a proven and commonsense way forward, based on principle and experience. This opening paragraph to a section on Fidelity in Chapter 6 exemplifies the approach:

Fidelity to the text and to the original meaning is what we want. Just as we keep out of the case for spoken interpretation, so too we keep out of the case for written matters. This means not “improving” the level of a text. Stick as close as possible to original grammar, style, and register. There are times when one must use an awkward English to adhere to the original meaning. The preservation of meaning and register is paramount. Remember especially that any “errors” in the original, be they typographical errors, missing pronunciation, or apparent illogic, must be preserved in the translation. [p. 111]

We can return to the remaining middle chapters of the book after a consideration of the quite different work by Susan Berk-Seligson, The Bilingual Courtroom.

The Bilingual Courtroom describes itself as an ethnolinguistic analysis of interpreters’ language, enhanced by a psycholinguistic study of mock jurors. The book’s target groups include sociological researchers, sociolinguists, trainers of court interpreters, and “all practitioners of law.” Notes to the early chapters show that the writer would like to appeal to all these groups: for example, pragmatics as a term is loosely defined for lawyers, while the precise nature of “initial appearance” is clarified for linguists. However, chapter or section titles such as “Hyperformality: A Shift Upward in Speech,” “Intransitivity and Backgrounding in Legal Discourse.” or “Interpreter-Induced Alternation in Pragmatic Blame Avoidance Mechanisms” show that this is a primarily a work of sociolinguistics, as indeed the author’s suggestions for skipping indicate.

In Chapter One Berk-Seligson gives a quantitative overview of court interpreting in the US, noting that Spanish/English dominates. In US Federal District Courts in 1986 Spanish interpreting was used on 43,166 occasions, while interpreting in 56 other languages amounted to only 3311 instances–a mere 7.67% of the total (Table 1.2, p. 5). Chapter Two looks at Law and Language primarily in terms of register and style. However, the theme moves to questions of control in the courtroom, and although touched on only lightly here, this becomes a dominant theme later in the book. Chapter Three gives A Legal Raison d’Etre for the Bilingual Courtroom, where the aims and ideals of statutory provision are in part contrasted with actual practice. The useful overview in these chapters, supported by citations, ends with a look forward to the main part of the book, where we learn that “much of what occurs during the course of interpreted judicial proceedings not only contradicts the norms that professional interpreter associations have established, but undermines the intent of the judicial system, which has authorised such proceedings to go on in the first place.” Chapters Four and Five then introduce us to the fieldwork procedures used and the ethnography of the bilingual courtroom–textbook stuff, almost literally.

Chapter Six makes one of the underlying themes of Berk-Seligson more explicit. It is clear that experienced lawyers (and some witnesses) consciously manipulate language to exert control in the courtroom. Most witnesses will, by their choice of language, affect the court’s and jurors’ perception of them. Whatever these perceptions are, they may be changed (for better or worse) by the intermediating interpreter. The normal dynamic of the L1 courtroom is changed. Berk-Seligson demonstrates this by a detailed analysis of the use of verbs in translation, focusing particularly on Ergativitiy, Agentless Passives and Impersonal Constructions. Through a contrastive analysis of English and Spanish, the pragmatic implications of a choice between active or passive verbs in the original and the interpretation are made quite clear. She concludes the chapter by saying “interpreters are unconsciously aware of the implications involved in the use of active and passive grammatical forms, and manipulate these forms for a variety of psychological reasons.” However, this is not supported. Apart from the one cited (and self-confessedly biased) interpreter there is little here to justify the assertion that inappropriate choices are deliberate. One could argue that, regrettably, too many interpreters are unaware of the pragmatic consequences of their linguistic choices; and indeed, Berk-Seligson does so in the next chapter.

Chapter Seven focuses on The Intersection of Testimony Styles in Interpreted Judicial Proceedings: Pragmatics and the Lengthening of Testimony. Here the surprising finding is how court interpreting differs from translation. While translated English written texts are generally shorter than the Spanish originals, in court the mean length of English interpretation is longer than the mean length of the Spanish original answers to attorney’s questions. A close look at pairs of Spanish/English answers reveals that there are linguistic patterns: “the English interpretations (1) add hedges, (2) insert linguistic material… underlying.. the original utterances, (3) use uncontracted forms, (4) rephrase what the interpreter herself has just said, (6) add particles and hesitation forms” (p.131). The argument is copiously illustrated; here are examples of hedging and insertion:

7.6 WITNESS: Una avioneta pequeqa blanca con raitos azules. INTERPRETER: It was a small airplane, white, with a sort of, sort of blue lines, blue stripes.

7.8 WITNESS: ?Al aeropuerto de Juarez? INTERPRETER: You mean, who drove to the airport at Juarez?

The author’s conclusion (p. 145) includes this:

Whereas some of these additions and deletions seem to be unconscious on the part of the interpreter, other types can be accounted for by problems inherent in the interpreting process. Nevertheless, consciously made or not, alternations (sic) in the pragmatic features of utterances that are produced in a court of law as sworn testimony cam make the difference between the jurors having confidence in such testimony or not.

To test this assertion, Berk-Seligson conducted the psycholinguistic research experiments described in Chapter Eight. In the first described, two audio recordings were made of a witness testifying in Spanish through an interpreter; one recording had the interpretation being systematically polite, the other was devoid of politeness. The subjects rated the witness through the interpretation, and Berk-Seligson concludes inter alia that politeness in a witness improves the witness’s rating for convincingness, competence, intelligence, and trustworthiness. This may seem obvious to observers of court proceedings, but it appears contrary to Berk-Seligson’s hypothesis concerning a powerless testimony style, alluded to in Chapter Two. Similar experiments focused on the presence or absence of hyperformality: a more positive rating goes to the witness using the more formal English, which is again a surprise to the researcher. However, the less positive ratings for witnesses who hedged or used passive instead of active verb forms was not.

This one paragraph summary omits details of the reactions of Hispanic members of the research panels of mock jurors, but in essence the research shows that those witnesses who are or attempt to be close to the sociolinguistic norms of the courtroom are more favourably rated: domain dominates. In a similar way, the research shows that verbal acts by the interpreter which intrude on proceedings–for example, by asking questions of the attorney or prodding witnesses–have less adverse effect on the jurors than misinterpretations of the witness testimony.

We now have to ask where all this research leads. It is doubtless agreed that the language (and complete semiotic complement) used by witnesses affects the perception of them by jurors, in any L1. Berk-Seligson demonstrates that the interpreter, through interpretation, may affect that perception of the witness, either positively or negatively. However, there is little to prove that interpreters are fully aware of all these things. We can guess that many are no more aware of how witnesses are evaluated than any informed lay person; that those who are so aware might not appreciate the consequences of misinterpretations; and that those that do appreciate these matters nevertheless do not employ them consciously in any attempt to affect the situation. Ideally, the linguistic and professional competence of all court interpreters should mean that interpretation never affects the situation, but to achieve that ideal would require training.

Berk-Seligson is clear (p. 197) that “interpreter training programmes should look to linguistics in general, and to the field of pragmatics in particular.” We can agree with this, and extend these aims beyond the need “to sensitise persons entering this profession as to the multiple ways in which they can affect a jury.” In accepting that the case for linguistics and pragmatics informing the training for and practice of court interpreting is well made, we can turn now to the middle chapters of The Practice of Court Interpreting.

Chapter 4 is titled In the Courtroom – Ethics, Roles, Procedures. Some of this material is objective: Who is Who in the Courtroom, Sound Equipment. But most of it concerns the behaviour of the interpreter: how to dress, how to deal with court procedural matters, how to project the image of a competent professional; and the performance of the interpreter. For this, the interpreter is advised to be impartial, express no opinions, maintain secrecy, and, as far as language is concerned, be accurate but prepared to admit mistakes or problems. All these points are made in the practical style which offers good advice based on experience.

In Chapter 5, the same approach is followed in pointing out to interpreters The Rich Potential for Error. An example is generally given for each point, of which there are many. They include misunderstanding: (perros (dogs) for peros (doubts); incomplete rendition; imprecision: feet for metres; idiomatic expressions and homilies; and regional expressions, dialect and slang. Edwards also deals with register and politeness. Calling for interpreters to be both bilingual and bicultural, she points out to the reader that jail/slammer or gentleman/guy are pairs in different registers and these oppositions must be maintained in the target language. When dealing with politeness, such as address forms, the interpretation must reflect the same degree of politeness. Somewhat curiously, there is a warning to interpreters to maintain politeness with the witness, and not be condescending to a scruffy looking witness by using a familiar address form.

At this stage we see, however, the limitations of this approach. All this advice offered by Edwards is fine; nobody would seriously argue against a commonsense checklist of good practice, and no doubt the author knows many potential target groups for whom this text is pitched at the right level. However, it seems that there must be a higher level of linguistic understanding to which professional court interpreters should aspire, elements of overreaching principle which encompass the myriad examples. A return to the active and passive in Spanish, treated by both authors, might illustrate this point. Edwards in Chapter 5 sensibly warns against The Perils of Literal Interpretation. One example refers to Established Versions:

For book and movie titles, someone has done the work for you, there is an accepted version. When the FBI seizes a Spanish version of a writing by Lenin entitled “Qui Hacer?”, the correct English rendition is “What Is To Be Done?”, because that is how the essay was translated into English, not the literal “What to Do?”

Quite true, but this is more than just an example of a Russian essay having an English title. The infinitives of Spanish verbs, such as hacer, in common with the infinitive form in many languages – notably Russian – are rendered into active or passive infinitives in English, depending on the context, not the whim of the interpreter. A similar simplification is at Chapter Seven in Berk-Seligson. Under discussion is the contrast between the answer by the witness “omitting mention of a noun object of the verb” and the rendition by the interpreter with “the insertion of such a noun following the verb” (p. 133):

7.7 WITNESS: Sm, tenma. INTERPRETER: He did have a beard.

Of course the point being made is correct: do not change the degree of emphasis of the original. But the issue of compulsory complementation in English, but not in Spanish nor many other languages, is overriding, and the linguistic implications for short form answers or emphatic declaratives need to be considered generically, rather than by occurrence. Another area is politeness. In a language with several second person address forms, there may be fewer occurrences of “please” and “thank you” than in English because the politeness is marked elsewhere; and there may be more mentions of “sir” or “madam” equivalents for cultural reasons. This might mean that despite Berk-Seligson, the proper register is indeed maintained by omission or inclusion of speech items. British diners in Spanish restaurants in the UK punctuate the meal with excessive (by Spanish standards) use of Thank you to the waiters.

The socio-cultural reasons why both these books focus almost exclusively on Spanish/English interpreting are clear, but the Hispanic situation in the US is not replicated in many other countries–certainly not in England and Wales. Even in Wales, where there is a right to a native tongue courtroom, the absolute numbers are so small that Welsh/English counts less than sixteen other language combinations (cf. Access to Justice, p. 12. London: Nuffield Foundation 1993). Court interpreting training in the US will reflect the fact that large numbers of witnesses are indigenes using Spanish. In England and Wales there is a far more even spread of languages and origins of witness.

Training programmes in both countries, however, should contain material which takes account of the evidence provided by Berk-Seligson for the linguistic and pragmatic content of court interpreter training, backing up the assertions about the desired competence in interpreters. Edwards shows how necessary it is to provide handy reference books for court interpreters: it is certain to be imitated in a UK context. Yet the book also aspires to be a coursebook, and declares “The structure of the book follows the structure of the work as we do it.” This method of apprentice training seems beloved of translators and interpreters alike, yet there is no pedagogic evidence to suggest that the training programme must replicate the task. The conclusion from reading these two different works is that a more radical applied linguistic approach is needed to prepare and train bilingual and bicultural candidates for interpretership.

[Received August 1996]

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