About the LEP’s Right to “Hear Everything” in Court

About the LEP’s Right to “Hear Everything” in Court

Janis Palma

The United States Supreme Court building, a symbol of justice and the rule of law

One of the rules of thumb that interpreters often follow in court is the if-then structure, which we should be able to use to make decisions based on Logic. If the English-speaker can hear it, then the non-English speaker has to hear it as well. It is a good principle to uphold when the Limited English Proficient (LEP) is the only defendant before the court. However, in courts where the case loads are exceedingly heavy, judges may group cases that share a common trait, such as the type of crime and type of proceeding. Groups of 10, 14, 20 defendants and even larger than that line up in front of the judge, and they all hear the same script with minor variations tailored to the specific circumstances of each defendant. Sometimes English-speakers and non-English speakers are grouped together, so there will be an interpreter or a team of interpreters for the non-English speakers (I have seen this done with Spanish-speaking defendants only, so I don’t really know if it is done with speakers of other languages). As the judge begins to address each defendant individually during certain portions of the proceeding, I have noticed that some interpreters want to apply the same if-then rule and proceed to interpret whatever the judge is saying to one of the English-speaking defendants in the group, because if the English-speaker can hear it, then the non-English speaker has to hear it as well. But this is a false premise, and I will explain why.

Interpreters should consider each case in the group as a separate case and look at each LEP defendant as if he or she were in court alone, not in a group. This is what the judge is doing, except that we don’t see it from our vantage point. Judges have each case file in front of them and are considering each case individually, separate from one another. No more can the judge conflate the cases than the interpreter can. The obligation imposed by statute and case law on the interpreter is to interpret everything that happens in court as it refers solely to that LEP defendant’s case, not to everything that is unrelated and irrelevant as far as the defendant’s constitutional rights are concerned. The right to hear and understand everything that happens in court is specifically related to a proceeding involving a defendant, where the Fifth, Sixth, and Fourteenth Amendments guarantee that all criminal defendants have a fair trial, are informed of the nature and cause of the accusation against them, have an opportunity to confront the witnesses against them, have the assistance of counsel for their defense and equal protection under the law. The case law in the United States has established the link between constitutional protections and the appointment of an interpreter for an LEP defendant.

Defendants standing in line in a courtroom, awaiting their hearing

The Sixth Amendment to the Constitution guarantees an accused in a criminal prosecution the right to be confronted with the witnesses against him. One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in the courtroom during his trial. The right to be present includes the right to understand the testimony of the witnesses. […] We have previously acknowledged that providing an interpreter to an accused who does not understand English is required by the Confrontation Clause.

Garcia v. State , 149 S.W.3d 135, 140-41 (Tex. Crim. App. 2004).

So even when there are other English-speaking defendants in the courtroom being arraigned, or pleading guilty, or coming for an initial appearance together with the non-English speakers in the same group, the interpreter is there for the LEPs as if each one were there alone standing before the judge. That is the judiciary interpreter’s legal obligation. It is not to interpret everything that happens in other cases unrelated to the LEP; it is only to interpret everything that happens in that LEP’s case .

By extending the LEP’s right to hear and understand what is happening in court to unrelated matters “because the English-speaker would hear it” is merely increasing the interpreter’s cognitive load unnecessarily and, consequently, accelerating the onset of mental fatigue and the risk of mistakes. Whenever we have groups of English-speaking and non-English speaking defendants together, we should take advantage of any opportunity to rest whenever there is a case in the group proceeding that does not require an interpreter. An interpreter’s job is hard enough when there is just one defendant in one case. We don’t need to make it any harder by adding on interpreting duties that neither statutes nor case law have ever required of us.

I realize this may not be what many interpreters have been taught, but I would like to know if, given this legal framework, does this practice make more sense to you than interpreting everything said in the courtroom even when it does not pertain to the LEP’s case?

Thank you for reading!

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Janis Palma has been a federally certified English<>Spanish judiciary interpreter since 1981. She recently finished a Ph.D. in Language Studies and a Master in Legal Studies (MLS). She also holds an M.A. in literature and history from the Centro de Estudios Avanzados de Puerto Rico y el Caribe. Thanks to her participation in SSTI’s Research Collaborative, her main focus is now on research and is pursuing a second Ph.D. in Rhetoric, Communication, and Information Design at Clemson University. After working for over 40-some years as both staff and freelance in courts around the country, Janis is now retired-ish, living in San Antonio, Texas, close to her daughter and two of her youngest grandchildren. When she is not volunteering for NAJIT, she likes to get creative, whether it’s painting, making soaps, wiring lamps, or re-finishing a table.