Vol. VII, No. 3 - Summer 1998

Telephone Interpreting:
Technological Advance
or Due Process Impediment?

lthough it has become commonplace to argue that telephone interpretation of court proceedings is a complex issue involving many different factors and considerations, I believe there are really only two schools of thought: some favor telephone interpretation because it is expedient and cheap, and others distrust it because they consider the telephone an inadequate medium for communication in a legal setting. What I propose to do here is lay out the various arguments pro and con, analyze the available data, albeit scarce, and offer some conclusions in order to initiate a discussion in which I hope all will participate, to help NAJIT articulate a clear and unequivocal position on what I think is one of the most important questions to challenge this profession since its inception two decades ago.

Let us look, then, at the defense of telephone interpretation offered by federal and state court administrators. First, they say, qualified interpreters can be provided by telephone to defendants in places where no competent interpreters are available, thus eliminating the use of unqualified interpreters in court. This argument can be summed up as “A good interpreter at a distance is better than a bad one up close, or none at all.” Second, they say, this system is efficient and cost-effective, since an interpreter can be available over the telephone in a matter of moments and costs only a fraction of the fees incurred when an interpreter provides live interpretation.

The question is one of the inherent unreliability of the telephone for meaningful communication of important legal matters.

At first blush, these are reasonable arguments. No one would disagree that a good interpreter is better than a bad one. And every court administrator points to shrinking budgets. (Why, at a time when the economy is booming, employment is at an all time high, the end of the cold war has reduced the need for astronomical defense expenditures and people are paying more taxes than ever, less money is available to provide services to help guarantee constitutional rights, is beyond comprehension. But that is a different matter.)

Clearly, given a choice between spending more and spending less, a responsible administrator should not automatically approve the costlier option. But this is a false dichotomy. For the question here is not one of choosing between two equally good alternatives, one of which costs more. The question is one of the inherent unreliability of the telephone for meaningful communication of important legal matters.

A significant body of research dating as far back as Darwin has given rise to a growing literature devoted specifically to the study of non-verbal forms of communication. On the Internet, for instance, a browser will find more than 15,000 entries under this heading. Scientific interest in what is popularly referred to as “body language” has spawned research in psychology, anthropology, sociology, ethology, psychiatry and linguistics, among other fields.

The linguist and anthropologist Ray Birdwhistell, recognized for his important contributions to the study of non-verbal behavior, has estimated that “no more than 30 to 35 percent of the social meaning of a conversation or an interaction is carried by the words.” Another researcher, Allen T. Dittman (Siegman and Feldstein, 1978), has remarked, “We are constantly reading each other, or trying to, using all the information we can get, and we can get it from a lot more sources than just the words that pass between us.”

Eye movement, hand gestures, posture and a wide range of facial expressions constantly contribute to the listener’s understanding of the intent, emphasis, direction and length of an utterance. According to Birdwhistell, the human face alone is capable of making some 250,000 different expressions. Seeing the speaker, therefore, facilitates an interpreter’s ability to predict, anticipate and decode the meaning of a verbal message before rendering its equivalent in the target language. These, in fact, are among the skills interpreters are taught to develop in order to improve their performance. Visual access is necessary both to convey more clearly the messages uttered by the non-English speaker as well as to provide that person with a more nuanced, coherent and better organized version of the English discourse.

Birdwhistell also found that “there seemed to be some systematic regularity in the movement people made when they talked.” Echoing William Austin, he concluded that these signals “amplify, emphasize, or modify the formal constructions, and/or they make statements about the context [emphasis in the original] of the message situation.”

In a talk presented at NAJIT’s Annual Educational Conference in May of 1997, Janis Palma made reference to Carmen Judith Nine Court’s study of non-verbal cues in Puerto Rico and provided a glossary of physical gestures used to substitute for spoken words entirely. Palma’s point was that “Judiciary interpreters must develop a cultural competence on a par with their linguistic competence that will allow them to integrate paralinguistic information into the overall deciphering of meaning conveyed through spoken language.”

Need for Visual Contact

One professional interpreters’ association has already expressed an unambiguous position on this subject (Mintz, 1998). The standards established by the International Association of Conference Interpreters (AIIC) state:

In order to successfully fulfill his role as a conduit of multilingual communication, the conference interpreter must simultaneously perform several complex tasks: listen to the speaker, observe the non-verbal signals of his message, as well as the reactions it triggers in the individual listener and the audience as a whole; analyze a fleeting and yet real message in its entirety ( the spoken and the unspoken); interpret the message into another language, preserving the characteristics of form and substance inherent in another culture; establish visual/gesture-oriented contact with the listeners in order to confirm that the message has been received. In this regard, having a direct view of the entire context of the event where the messages are being interpreted is essential.

The temptation to make certain technologies deviate from their original goal by coming up with the idea, for example, of placing interpreters in front of monitors/screens to interpret from a distance a meeting at which all the participants are gathered in the same location (tele-interpretation), is unacceptable [emphasis in the original].

The Bilingual Courtroom, Susan Berk-Seligson’s 1990 study of court interpreters in action, describes a number of ways in which interpreters routinely interrupt the proceedings. She stressed that “perhaps the most important finding of this study is that the interpreter affects whatever power an interrogating attorney may have over a testifying witness or defendant. Through her interruptions, many of which may be subsumed under what have been called here ‘clarification procedures,’ the interpreter unwittingly usurps some of the power of the interrogating attorney.”

During a recent telephone interpreting event between Alaska and New Mexico that I was able to observe, the proceeding lasted about an hour and the interpreter had to interrupt at least a dozen times to inform the parties that he couldn’t hear them and ask that they speak into the microphone. Although we had been warned that the equipment was not optimal, the fact remains that during a guilty plea in a federal courtroom, the sound drifted in and out, and the ends of words were frequently cut off, sometimes forcing the interpreter to finish sentences based not on what he actually heard but on his familiarity with the protocol.

Safeguarding Conditions

In support of remote equipment, telephone interpreting enthusiasts argue that it will only be used for short and routine proceedings; it will only be used in outlying areas where no qualified interpreter is “reasonably available,” and it will be mostly used to alleviate the problem of providing quality interpretation in languages other than Spanish, the so-called exotic languages.

All of these assertions are contradicted by the facts. Let’s look at the recent history of telephone interpretation in the federal and state court systems.

It is simply not true that telephone interpreting has been limited to short proceedings.

The U.S. Court Telephone Interpreting Project was approved by the Judicial Conference in mid-1989 and the first system was assembled in November of 1990 in Las Cruces, New Mexico. During a trial period the staff office there provided telephonic interpretation for district courts in many other states.

The Administrative Office assembled a committee to discuss extending the program to other staff offices, a call for bids for the equipment provider went out, statistics were compiled, and program publicity was assembled. The Judicial Conference voted to expand the program in September of 1995, informing Congress that the number of court sites offering telephone interpreting services would be expanded “to achieve greater savings.” Three other district court interpreters offices are now participating, providing telephonic interpretation in Spanish to their own satellite courthouses and to a number of other remote locations. In fiscal year 1996, 402 federal court hearings and 222 off-the-record events were interpreted over the telephone.

Parameters of Use

Although the proponents claim that telephonic interpretation will only be used in areas where qualified interpreters are not “reasonably available,” this assertion, too, is disingenuous. Included in the twelve states where district courts have used Spanish/English telephone interpretation are California, Florida, New Mexico and Texas––hardly remote areas where qualified interpreters are not reasonably available. We have seen that some courts are quick to claim that qualified interpreters are not “reasonably available” to justify hiring unqualified interpreters. Often a certified interpreter is quite reasonably available, but the courts turn to non-certified interpreters as a cost-saving measure.

Any success in the use of the telephone for languages other than Spanish, if any, has not to my knowledge been publicly reported.

On the state court level, the National Center for State Courts also launched a telephone interpreting pilot program with an initial $170,000 grant. AT&T Language Line is handling the contracting of interpreters and provision of the services. Approximately a year ago, AT&T was offering to pay a federally certified interpreter $100 per day for an 8-hour day of non-stop work. While their publicity stresses the high quality of the interpreters they use, few professionals with the requisite credentials would work for less than half of their usual fee (and about one fifth of the standard rate for assignments in private industry).

The NCSC’s home page on the Web reported on March 5 that the feasibility report at the conclusion of the project will “emphasize ways to make the service self-supporting (in the case of public agency providers), or profitable (for commercial carriers).”

The equipment installed by AT&T in the Pomona Superior Court in Los Angeles is simply an intercom that picks up all sounds in the courtroom, and can only be used for the consecutive mode. A year ago, Beverly Hills and Long Beach were also scheduled to be equipped by AT&T. In the Superior Court of Tucson, Arizona, the court considered acquiring equipment, but the chief judge decided against it, citing the advantages of live interpretation. Still, many courts will be won over to AT&T’s sales pitch promising an interpreter of any language in seconds at an affordable price. The federal courts can also be expected to jump on the bandwagon.

The question, then, is not whether telephone interpreting will proliferate or not. The question is what position court interpreters and the organizations that represent them should adopt in the face of this phenomenon.

Obviously, many interpreters will view telephone interpreting as a potential source of work, regardless of their opinion on the merits of the method, and it would be foolish to condemn individuals for accepting these assignments. But in the federal court system, at least, far from creating job opportunities, the telephone interpreting program is shifting the workload onto staff interpreters who cover events by telephone, thus eliminating the need to hire free-lance interpreters. Several colleagues report this to be the case, even in areas like Dallas, Texas and Nashville, Tennessee.

What the future holds

Some professionals argue that telephone interpreting does have a place in the courtroom, provided that norms are established and enforced, and limits placed on its use––that is, only for short proceedings, only where no qualified interpreters are available, only if the equipment is sufficiently sophisticated, and so on. But who would develop these norms and, more to the point, what mechanism would the courts use to establish and monitor compliance with the standard?

Let’s look at how reliable court administrations have been so far as enforcers of norms and practices aimed at safeguarding quality interpretation. The Court Interpreters Act calling for the use of certified interpreters has been the law of the land for 20 years, and yet the Administrative Office asserts that it has no power to alter the practice of some judges who routinely choose non-certified over certified interpreters. That interpreters should work in teams during long proceedings has been well established and recognized by all professional interpreter associations, and yet this practice is not followed in most state and a number of federal courts. There is also ample evidence that the only way to safeguard the legal rights of limited-English litigants to a competent, qualified interpreter is by developing valid and reliable interpreter testing and training programs. And yet the federal courts have dropped an earlier commitment to test and credential interpreters of other languages, and neither state nor federal courts have seen fit to allocate funds for serious and sorely needed training programs.

In light of such a track record, it seems naive to think that the court administrations will implement and abide by norms intended to prevent the abuse of telephone interpreting. While this might be an acceptable compromise in an ideal world, we live in a world governed by the profit motive, and private companies are quick to see they can make money on federal and state contracts. At the same time, court administrators cite the lack of funds––real or imagined––to justify every decision, regardless of its impact on the quality of services provided. From there it is a small step to viewing live interpretation as a luxury the system cannot afford.

The arguments in support of telephone interpreting may sound reasonable to some, including those who find fault with it but consider it the lesser evil in remote areas where a live interpreter cannot be produced on short notice. But in practice it has become obvious that the primary purpose for eliminating in-person interpretation in the courts is to save money, not to improve the quality of the services or ensure defendants’ right to due process.

And due process rights happen to be the yardstick the courts use to measure fairness. While telephone interpreting is primarily a work issue for language specialists, for the courts it is an issue of diluting the quality of justice. Only those who must take an oath to interpret fairly, accurately and completely can fully understand the complexity of the task and the burden of responsibility that such an oath places on them. The judicial system has an obligation to ensure that interpreters are helped––not hindered––in carrying out that oath.

While telephone interpretation might be suitable in some situations where accuracy is secondary and only the substance of the message is important, judiciary interpreters should take a firm stand against the proliferation of the telephone in a formal legal context. To do otherwise would be to place the financial interests of court administrations above the due process that we are pledged to serve.

References

Birdwhistell, Ray L. 1970. Kinesics and context: Essays on body motion communication. Philadelphia: University of Pennsylvania Press.

Mintz, David. 1998. Hold the phone: Telephone interpreting scrutinized. Proteus. Winter 1998. 7.1:1,3-5.

Palma, Janis. 1997. What you see...is what you get?: The hidden messages of discourse. Paper presented at the 18th Annual Meeting and Educational Conference of the National Association of Judiciary Interpreters and Translators, Seattle, Wash.

Second report sent to Congress on the optimal utilization of judicial resources. 1998. The Third Branch. Newsletter of the Federal Courts. February 1998. p.5.

Siegman, Aron W. and Stanley Feldstein, eds. 1978. Nonverbal behavior and communication. New Jersey: University of Maryland Baltimore County.

Telephone interpreting service to expand. 1996. Federal Court Management Report. February/March 1996. p. 12.