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The Silent Injustice of Ineffective Interpreting and How Courts Can Prevent It

6/23/2017

June 23 , 2017

"Ensuring meaningful access to justice requires that all litigants—including those with limited English proficiency [LEP]—are equally given the opportunity to participate meaningfully throughout the legal proceedings. Judges cannot administer justice when litigants in their courtrooms are unable to understand what is going on, or to convey crucial information to the court."

Victor Ponce v. State of Indiana, 9 N.E.3d 1265 (2014)

In Victor Ponce, the Indiana Supreme Court overturned a felony drug conviction due to an ineffective interpreter. The translated court transcript revealed that the interpreter did not provide an accurate or complete Spanish and English interpretation of the judicial proceeding, such that both the judge and Mr. Ponce were not able to effectively communicate. As a result, the Indiana Supreme Court overturned Mr. Ponce's guilty plea because it found the plea was not knowingly and voluntarily given.

Cases like this one are a stark reminder of the seriousness of ineffective interpreting and the barrier it can present in court to a person with limited English proficiency (LEP). More often than not, an interpreter is the only person in the courtroom that understands English and the second language spoken or signed by the person with LEP. There is no one else that can challenge whether the interpreter is actually doing her job, and the LEP person, who may have a valid right to appeal due to ineffective interpreting, has the least chance of knowing whether what she is saying is being communicated accurately and completely, and whether an attorney's questions or a judge's instructions are being interpreted correctly to her.

In this way, ineffective interpreting is a silent injustice. There is often no one to speak out. Unqualified interpreters can present incorrect evidence, affect the reliability of testimony, mislead judges, juries, and attorneys, and, as in Victor Ponce, cause litigants to unknowingly waive their rights. The problem is compounded by the fact that most courtrooms do not have digital recording, so there is often no mechanism for examining the interpreter's rendition. Cases using court reporters will capture the interpreter's English interpretation of what the LEP person said to the court, but will not capture the interpreter's original communication to the LEP person in the second language.

To provide meaningful language access and prevent the injustice of ineffective interpreting, state courts across the country have built robust language access programs, and Illinois is no exception. The Illinois Supreme Court's Commission on Access to Justice drafted a Language Access Policy ("Policy"), which the Supreme Court adopted in 2013. Per the Policy, the AOIC Civil Justice Division recruits and trains interpreters to become certified, promotes the use of qualified interpreters in court proceedings through judge and court staff training, maintains circuit Language Access Plans, and develops translated court forms and resources. These efforts are particularly important in Illinois, where according to Census data over one million Illinois residents (about 10% of the population), speak a language other than English at home and speak English "less than very well" and need the assistance of an interpreter to effectively communicate in court. In 2015, Illinois courts reported about 190,000 instances of interpretation in civil, criminal, and court-annexed proceedings in over 63 languages. The most common languages requested in court are Spanish, Polish, American Sign Language, Russian, Arabic, Mandarin Chinese and Korean.

Since the Policy's adoption, the AOIC Civil Justice Division has built a new Registry of Court Interpreters that is publicly available here and includes three tiers of interpreters. Court interpreting is a sophisticated and demanding profession that requires many more skills than simply being bilingual, such as native-like language proficiency in both languages, top notch memory and note-taking skills to remember 50-100 word long sentences, and the ability to quickly switch between two different languages and convey the same meaning. The AOIC training and testing requirements reflect national best practices and rely on court interpreter exams created by the National Center for State Courts.

Court interpreter certification is relatively new in Illinois. While there has been enormous progress and participation from interpreters and courts across the State, it is important to acknowledge that cultivating a strong and deep base of certified interpreters takes time. At present, the AOIC Registry has 60 certified interpreters in 10 spoken languages, 104 sign language interpreters, 27 registered interpreters that have scored at least 60%, and 198 interpreters that are preparing to pass the oral exam. The AOIC continues to support interpreters as they prepare for the exam through offering subsidized skills building trainings and publicizing local and regional training programs.

If the interpreter in the Victor Ponce case had been certified, the interpreter would have likely proven the ability to interpret critical and common courtroom communications, such as taking a guilty plea. Relying on a performance standard of certification, rather than a subjective standard of hiring any person that is responsive and claims they are bilingual, ultimately protects the defendant's due process rights and reduces costs to the court system. Currently, Illinois courts report that only 30% of interpretations are done by interpreters on the AOIC Registry. The AOIC Civil Justice Division will continue its focus on building a pool of certified interpreters available statewide and providing judicial education to ensure the courts are providing meaningful access to justice to all, regardless of language ability.