Tuesday, August 23, 2011

Proposed ABA Standards for Language Access in Courts Tabled to 2012

Rob Cruz, Chairman of the National Association of Judiciary Interpreters and Translators (NAJIT), recently informed NAJIT members that the American Bar Association House of Delegates discussed the proposed Standards for Language Access in Courts [Note: the text of the Standards is no longer available on ABA's web site, instead a description of the Language Access Standards project can be found. December 2011] during its annual meeting held during the first week of August in Toronto, Canada.   According to Cruz, the Conference of Chief Justices and the Court Administrators' group each presented a resolution against the Standards on the basis that they were too broad regarding language access outside the courts.   Despite efforts by the proponents of the Standards, it became clear that the Standards would probably not pass, Cruz said.
Nonetheless there is hope as they were tabled until the next House of Delegates meeting in February 2012.  Cruz considers that “the fact that the debate is ongoing is a tremendous positive [...] . After all, he said, the best Standards will be merely symbolic if funding is not addressed.”
To be continued… The struggle is not over.

Tuesday, August 9, 2011

Definition of Terms in ABA Standards: A Snapshot of Court Interpretation


The proposed American Bar Association Standards for Language Access in Courts sets the ground for a homogeneous system of language access services in the US judicial system.  For those interested in understanding interpretation and translation services within the US judiciary, the definitions included in the ABA standards offer a wealth of information regarding the key players in the provision of language access services, court personnel, processes and procedures, and court-ordered services regarding language access for Limited English Proficient (LEP) persons.  The very notion of limited proficiency is also defined.  These definitions, which are reproduced below, offer a snapshot of how interpretation has been shaped and is perceived in the US judiciary. 

It is worth noting that these definitions are intended for a broad audience and therefore were worded in a way accessible to most, but they also contain language and concepts that might be new for some of the persons these standards are aimed at.  Some of them are rather vague, like the definition of the term ‘certification.’   This vagueness may be due to fact that the document would be too long were it to include all the knowledge, skills, and abilities required from an interpreter.  It may be also related to the fact that at this point there are not standards of practice in this field, nor are there standards for the teaching of interpreters.  The term ‘credentialing,’ though, provides more information on interpreter qualification.  It includes a footnote containing a link to more detailed information on key elements for a successful language access program.  Two other terms that fit the bill are ‘bilingual’ and ‘competency assessment’.

Another definition that is worth commenting on is the term ‘cultural competence;’ a concept either unknown or neglected when referring to interpretation or interpreters.  The definition of ‘interpreter’ does not include cultural competence as a skill. Language and culture go hand in hand, and this is particularly true in legal language.  In an upcoming post, I will be addressing cultural competence, how it entered into court and health interpretation, and how it is now being recognized as an important component in the provision of language access services.

Under the definition of the term ‘interpreter’ there is an interpreter classification.  This typology, as evidenced by the Brennan Justice Institute’s report on language access in state courts, changes from state to state.  As for ‘interpreter functions’, also included in the definition list, interview interpreters are oftentimes interpreters who work for the prosecution and do not interpret for the record.  As for ‘proceedings interpreter’ and ‘witness interpreters’ in many state courts there is no such distinction.

Finally, the term ‘transcription’ reveals another task carried out by court interpreters.  The bulk of transcriptions court interpreters do relate to police monitoring procedures; i.e. wiretaps and video.  The definition includes a footnote that leads to a NAJIT (National Association of Interpreters and Translators) position paper on translation of transcripts of audio and video material.

If adopted, the proposed American Bar Association Standards for Access in Courts will be an invaluable tool that would allow a widespread knowledge of key concepts used in the fields of translation and interpretation.


Definitions 

Note:  These definitions are found in pages 5-10 of the ABA Standards for Language Access in Courts  [Note: the text of the Standards is no longer available on ABA's web site, instead a description of the Language Access Standards project can be found. December 2011].  They are included here for reader’s convenience.  The  URL's included in the original document have been turned into links in this posting.  Also some definitions are accompanied by a short commentary.  Comments are indented and in dark purple characters.

Bilingual – Using or knowing two languages proficiently.

Bilingual Staff – Individuals who are proficient in English and another language and who communicate directly with an LEP individual in their common language. This term is intended to be read broadly to include individuals who are proficient in multiple languages.

Certification The determination, through standardized testing, that an individual possesses certain knowledge, skills, and abilities.

Competency Assessment – The testing of qualifications, such as language competency.

Court – Any tribunal within an adjudicatory system.

Court‐annexed Proceedings – Court‐sponsored proceedings, such as arbitration, which are
handled by officers of the court.
Court Interpreter Code of Professional Conduct – The minimum standard of conduct for
interpreters working in a court. This is also referred to as the interpreter’s ethical code.

Note:  As I view it, the code of professional conduct or code of ethics not only guides interpreter’s behavior and ethics but also describes a professional activity. Since every activity evolves, the code of professional conduct or code of ethics should also evolve. In other words, it should be considered as a guide, keeping in mind that, like a law, a code of ethics is developed according to perceptions and needs of a specific time-period. But it does not contain answers for all situations and should not be followed in a way that restricts full use and expressions of professional skills. 

Court‐managed Professionals – Persons who are employed, appointed, paid, or supervised by
the court. These may include counsel, guardians, guardians ad litem, conservators, child advocates, social workers, psychologists, doctors, trustees, and other similar professionals.

Court‐mandated Services (also referred to as court‐ordered services) – Pre‐ or post‐adjudication
services or programs that are required of litigants in connection with a civil or criminal matter.
Court‐mandated services include treatment programs, evaluations, supervision, and other services required by the court.

Court‐offered Services – Pre‐ or post‐adjudication services or programs that are offered to litigants to resolve a civil or criminal matter. These may include alternative sentencing, mediation, alternative dispute resolution, mediation, arbitration, treatment programs, workshops, information sessions, evaluations, treatment, and investigations.
Court Personnel‐ Court‐managed, ‐supervised, or ‐employed individuals who work in court services and programs.

Court Services – The full range of court functions, including legal proceedings and other court operated or managed offices with points of public contact. Examples of such services include information counters; intake or filing offices; cashiers; records rooms; sheriff’s offices; probation and parole offices; alternative dispute resolution programs; pro se clinics; criminal diversion programs;  anger management classes; detention facilities; and other similar offices, operations, and programs.

Credentialing – The process of establishing, through training and testing programs, the qualifications of an individual to provide a particular service, which designates the individual as qualified, certified, licensed, approved, registered, or otherwise proficient and capable.6

Cultural Competence – A set of congruent behaviors, attitudes, and policies that come together in a system, agency, or among professionals that enables effective work in cross‐cultural situations.7

Interpreter – A person who is fluent in both English and another language, who listens to a communication in one language and orally converts it into another language while retaining the same meaning.

Interpreter by Classification:

 Certified Court Interpreter An individual who has the ability to preserve the “legal equivalence” of the source language, oral fluency in English and the foreign language; the skill to interpret in all three modalities (simultaneous, consecutive, and sight translation); and the knowledge of the code of professional conduct; and whose ability, skill, and knowledge in these areas have been tested and determined to be meet the minimum requirements for certification in a given court.

Registered or Qualified Court Interpreter – An individual whose ability to interpret in the legal setting has been assessed as less than certified. This designation can either denote a slightly lower score on a certification exam or, for languages in which full certification exams are not available, that a registered or qualified interpreter has been evaluated by adequate alternate means to determine his or her qualifications and language proficiency.

Interpreter Functions:

Interview Interpreter – Interprets to facilitate communication in an interview or consultation setting.8

Proceedings Interpreter – Interprets for an LEP litigant in order to make the litigant “present” and able to participate effectively during a proceeding.9

Witness Interpreter – Interprets during witness testimony for the purpose of presenting evidence to the court.10

Interpretation – The unrehearsed transmitting of a spoken or signed message from one language to another.11

Interpreter Services – The services provided by professional, competent interpreters, including those provided for legal proceedings and services outside of the courtroom.

Language Access – The provision of the necessary services for LEP persons to access the service
or program in a language they can understand, and to the same extent as non‐LEP persons.

Language Access ServicesThe full spectrum of language services available to provide meaningful access to the programs and services for LEP persons, including, but not limited to, in‐person interpreter services, telephonic and video remote interpreter services, translation of written materials, and bilingual staff services.

Language Access Services Office – A centralized office tasked with coordinating, facilitating, and enforcing all aspects of the courts’ language access plan.

Language Access Plan – A written plan used to implement the language access services of a
court, which includes the services that are available, the process to determine those services, the process to access those services, and all of the components of a comprehensive system.
National variation exists regarding the name of this plan; some refer to a “language assistance plan” and others to a “policy for providing services to LEP persons” or an “LEP plan.”

Language of Lesser Diffusion – A language with low representation within a jurisdiction and for which interpreter services, translation services, and adequate language‐specific training is largely unavailable or very limited.

Language Service Providers – A person or entity who provides qualified court interpreting services, bilingual assistance, and translation services for individuals who are limited English
proficient.12

Legal Proceeding – Court or court‐annexed proceedings, including proceedings handled by judges, magistrates, masters, commissioners, hearing officers, arbitrators, mediators, and other decision‐makers.

Limited English Proficient Person – A limited English proficient (LEP) person is someone who speaks a language other than English as his or her primary language and has a limited ability to read, write, speak, or understand English.13

Machine Translation – Software that automatically translates written material from one language to another without the involvement of a human translator or reviewer.

Meaningful Access The provision of services in a manner which allows a meaningful opportunity to participate in the service or program free from intentional and unintentional discriminatory practice

Note:  This concept is the object of Standard number two and is explained in detail in ABA’s document.

Modes of Interpreting

Consecutive Mode – Rendering the statement made in a source language in the target language only after the speaker has completed the utterance.

Simultaneous Mode Rendering the interpreted message continuously at nearly the same time someone is speaking.

Sight Translation – A hybrid of interpreting and translating in which the interpreter reads a document written in one language while translating it orally into another language, without advance notice.14

Multilingual Document Format – The practice of having multiple languages—one of which is always English—on one form for a translation.

Persons with Legal Decision‐Making Authority – Persons whose participation is necessary to protect their legal decision‐making interest and to protect the interest of the individuals they represent.

Persons with a Significant Interest in the Matter – Persons whose presence or participation in the matter is necessary or appropriate.

Plain Language – Communication that members of an audience can understand the first time it is read or heard.15

Recipient of Federal Financial Assistance—Recipients of federal funds range from state and local agencies, to nonprofits and other organizations. A list of the types of recipients and the agencies funding them can be found at Executive Order 12250 Coordination of Grant‐Related Civil Rights Statutes. Sub‐recipients are also covered, when federal funds are passed from one recipient to a sub‐recipient. Federal financial assistance includes grants, training, use of equipment, donations of surplus property, and other assistance.16

Register – The level and complexity of vocabulary and sentence construction.17

Relay Interpreting – Involves using more than one interpreter to act as a conduit for spoken or sign languages beyond the understanding of a primary interpreter.

Relay Interpreter An interpreter who interprets from one foreign language or sign language to another foreign language or sign language, and vice versa. Another interpreter then interprets from the second language into English, and vice versa. This is also referred to as an intermediary interpreter.18

Source Language – The language of the original speaker, which the interpreter interprets into a second language. This term is always relative, depending on who is speaking.19

Target Language – The language of the listener, into which the interpreter renders the interpretation from the source language. This term is always relative, depending on who is
listening.20

Transcription ‐ The process of producing a written transcript of an audio or video recording,
where the recording is in a language other than English.21

Note:  As indicated in NAJIT’s position paper on transcription translation, there is no certification for transcription and translation of video and audio material entered as evidence in court proceedings, and training opportunities are quite limited. Recently, though Elena G. Rojas published her Investigative Surveillance Procedures for Transcription and Translation of Foreign Language Communication Intercepts published, edited by her own consulting firm Protrans Inc.

Translation  Converting written text from one language into written text in another language. The source of the text being converted is always a written language.22

Note:  As indicated in my July 14 posting, this is the first time the need for translation training is addressed, which is something I applaud greatly.  In the study I carried out within the framework of my doctoral studies in linguistics, it was clearly established that the tendency to translate literally is very prevalent in the legal field. The need for accuracy that is required in the translation of legal documents is often met by direct or literal renditions, resulting in texts that are odd, with limited expression, and even incomprehensible.

Back Translation (also known as Roundtrip Translation) – The translation of a translated text back into the language of the original text, made without reference to the original text.

Sight Translation – A hybrid of interpreting and translating in which the interpreter reads a document written in one language while translating it orally into another language, without advance notice.23

 Translation Memory Software – Software that stores and develops translated phrases for use in subsequent translations.

Translation Protocol – The process by which translations are evaluated for quality control ‐‐includes the process for creating and assessing consistent translations, evaluating translator qualifications, and reviewing the translation for accuracy.

 Translator – An individual who is fluent in both English and another language and who possesses the necessary skill set to render written text from one language into an equivalent  written text in another language.


Footnotes:
 
6    National Center for State Courts, Consortium for Language Access in State Courts, 10 Key Components to a Successful Language   Access Program in the Courts, (last visited Apr.18, 2011).
7    U.S. Dep’t of Health and Human Services, Office of Minority Health, What Is Cultural Competency?,  (last modified Oct. 19, 2005)
8    National Center for State Courts (NCSC), Court Interpretation: Model Guides for Policy and Practice in the State
    Courts, Ch. 2 (2009) [hereinafter, NCSC Court Interpretation Model Guides].
9    Id.
10 Id.
11 Id.
12 Consortium for Language Access, supra note 6.
13  See Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Person. 67 Fed. Reg. 41455 (June 18, 2002).
14   NCSC Court Interpretation Model Guides, supra note 8, at ch. 2. The interpreter is generally provided with sufficient time to review the document in full before beginning the sight translation. The ‘without advance notice” here is to distinguish this process from tape transcription, a process that occurs in advance of the legal proceeding where the foreign language tape will be introduced into evidence.
15 Plain Language, (last visited Apr. 18, 2011).
16 Definition from DOJ Commonly Asked Questions and Answers Regarding Limited English Proficient (LEP) Individual.
17 NCSC Court Interpretation Model Guides, supra note 8, at ch. 2.
18 Asian & Pacific Islander Institute on Domestic Violence, Resource Guide for Advocates and Attorneys on Interpretation Services for Domestic Violence Victims (2009),
19 Adapted from NCSC, supra note 8, at ch. 2.
20 Adapted from id.
21 National Association of Judiciary Interpreters and Translators (NAJIT), Position Paper, General Guidelines and Minimum Requirements for Transcript Translation in any Legal Setting (2009),
22 NCSC, supra note 8, at ch. 2.
23 Id.