Against the proposed “Conditionally Approved” credential for Nevada Court Interpreters

gavelThere is a proposal before the Nevada Court Interpreter Program’s Advisory Committee (it’s on their agenda since at least their prior meeting on February 2016) to introduce a new accreditation level for Nevada Court Interpreters, with performance requirements below the current accreditation: it proposes a provisional qualification for not (yet) certified or registered court interpreters, that nonetheless allows them to work in courts. In other words, it intends to admit in Nevada as actively working court interpreter persons who do not (yet) have demonstrated the minimum competent performance requirements for court interpreters. (There’s a copy of the proposed requirements.)

This proposal isn’t circulating only within the specific Advisory Committee that specializes in court interpreting matters. It is also being discussed within the Judicial Council of Nevada’s Language Access Committee (LAC) at least since their meeting in March, 2016. The LAC looks at language access issues across the entire Nevada judiciary (e.g. signage, translation of most used forms, etc.) I think it is an easy guess why there’s an interest in letting less-than-minimally qualified persons act as court interpreters: money, mostly. I’ll get to the details of the specific monetary aspect later. I’m focusing first on the unfortunate logic behind spending taxpayer money on developing the current court interpreter program to run expensive exams and award accreditation carefully to tested and minimally qualified persons only to then propose, amazingly perhaps, pulling the bottom from underneath that minimal necessary qualification.

According to the proposal, persons having such a provisional qualification would be referred to as a Conditionally Approved Court Interpreter. This is a different term than another, currently existing legal term: the Alternate Court Interpreter. The Alternate Court Interpreter was introduced in 2013 by the Nevada legislature when it enacted AB 365 and after passing it with overwhelming votes in favor it was signed into law by the governor the very same year. Later on I’ll dive deeper into the significance of proposing the term Conditionally Approved Interpreter, instead of the already existing term of Alternate Court Interpreter; I think that unfortunate chosen term of Conditionally Approved Court Interpreter is both revealing and deeply troubling. First, I’ll focus on the proposed lowered requirements for assignation as Conditionally Approved Court Interpreter, and then I’ll show how the proposal isn’t just lowering the required performance levels, but clearly drops requirements below the minimum acceptable levels of competence for aspiring court interpreters so as to be able to start working in courts. Below is a side-by-side comparison of the currently existing Certified and Registered Court Interpreter requirements, with the proposed requirements for that provisional qualification.

CertifiedRegisteredConditionally Approved
Complete the 2-day Orientation Workshop for interpreters in the Nevada Courts?YesYesYes
Pass the Court Interpreter Written Exam?Yes: minimum score 80%Yes: minimum score 80%Yes: minimum score 70%
Pass the oral exam?Yes, undergo 4-part oral examination, obtaining a minimum score of 70% on each part.No, must undergo oral proficiency interview instead.If applicable, undergo 4-part oral examination, obtaining minimum score of 60% on each part.
Undergo oral proficiency interview (OPI)?No, must pass oral exam instead.Yes, must undergo OPI by ALTA Language Services, Inc. ("ALTA") and receive a minimum score of 12.If applicable, undergo OPI by ALTA Language Services, Inc. ("ALTA") and receive a minimum score of 10.
Nevada courtroom observation or work requirements (prior to obtaining accreditation or assignation)Total of 40 hours during preceding 12 months.Total of 40 hours during preceding 12 months.Total of 40 hours during preceding 12 months.
Submit accreditation application request?Yes, for Certified Court Interpreter (upon meeting all other criteria) including passport size photograph.Yes, for Registered Court Interpreter (upon meeting all other criteria) including passport size photograph.Yes, for Conditionally Approved Court Interpreter (upon meeting all other criteria) including passport size photograph.
Mandatory background check?Yes, must submit two (2) fingerprint cards for background check prior to working in Nevada courts.Yes, must submit two (2) fingerprint cards for background check prior to working in Nevada courts.Yes, must submit two (2) fingerprint cards for background check prior to working in Nevada courts.
Filing and processing fee for application$50.00$50.00$50.00
Initial term of accreditation / assignationThree yearsThree yearsUp to two years
Renewal frequency of accreditation / assignationEvery three yearsEvery three yearsOnce only, up to an additional two years (after the initial maximum term of two years)
Education / training requirements?Yes: forty (40) credits, with minimum 10 credits per year and maximum of 20 per year, no more than 7 credits in non-interpreter/legal field(s) and no less than 10 in language-specific instruction, minimum 3 credits in ethics instruction, no credits can be carried over to next reporting period.Yes: forty (40) credits, with minimum 10 credits per year and maximum of 20 per year, no more than 7 credits in non-interpreter/legal field(s) and no less than 10 in language-specific instruction, minimum 3 credits in ethics instruction, no credits can be carried over to next reporting period.Yes: six (6) credits, unclear whether per year or per two-year max assignment term.
Work / experience requirements for renewal?Total of 120 hours of interpretation (in court or in depositions, legal interviews, etc.) is required during each 3-year renewal period; minimum of 10 hours of documented, actual in-court interpreting experience is required.Total of 120 hours of interpretation (in court or in depositions, legal interviews, etc.) is required during each 3-year renewal period; minimum of 10 hours of documented, actual in-court interpreting experience is required.None.

As can be seen in this comparison, the minimum score for the written exam currently is 80% to become a registered or certified court interpreter; the proposal drops that minimum passing score to 70% for the Alternate Court Interpreter. The written exam is offered in English only; it doesn’t test language proficiency in the “other” language. It measures instead things like a candidate’s ability to correctly understand English legal and procedural terminology, proper courtroom demeanor, and issues related to a court interpreter’s code of professional conduct. With the oral exam the passing score for certified court interpreters is 70%; the proposal is to drop it to 60% for the intended conditionally approved court interpreter. And the minimum score (or better: the required language proficiency level) during the oral proficiency interview for registered court interpreters is 12; the proposal is to allow conditionally approved court interpreters to obtain a proficiency level of 10.

So it’s quite clear that the proposal drops requirements below existing minimum competency and knowledge levels. I’ll explain below that those lowered levels actually drop below minimum competency skills. Meaning, the proposal is to give accreditation to less than minimally competent court interpreters.

About existing credentials for Nevada Court Interpreters
This is a brief explanation on why oral exams exist next to oral proficiency interviews, and the related basic difference between certified and registered court interpreters. Nevada has a program that administers the issuance and renewal of formal accreditation of court interpreters. Currently, depending on the language, that accreditation may be as Certified Court Interpreter or Registered Court Interpreter. The distinction is made because oral interpreting exams are quite expensive to develop and maintain. So, they’re not available for all languages; only for those in most demand. The oral interpreting exams test candidates on language competency (in both English and “the other” language) as well as actual interpreting skills.

For languages without an oral exam a language proficiency interview is conducted instead, via an interview called Oral Proficiency Interview or OPI, to determine language competency in both English and “the other” language. The OPI doesn’t specifically assess interpreting skills; those are essentially assumed to be sufficient. In my view, the Registered credential is reasonably “the next best thing” available, in practical terms, so as to balance available scarce funding and existing demand for interpreting services in any given language. However, both certified and registered court interpreters must attend a workshop on courtroom demeanor and court interpreter ethics, as well as renew their accreditation every three years. In order to do that they must – among other things – during each 3-year term comply with a set of strict requirements of continuing education, aside from having to show many documented hours of experience working for courts, pass a criminal background check, and (of course) pay a fee.

I have repeatedly emphasized the importance of establishing levels of “minimum competency” which, I think, can be easily agreed upon. But I’ve also stated that the proposal of the Conditionally Approved Court Interpreter delivers accreditation to incompetent interpreters. So, who establishes those minimum levels? Doesn’t that easily devolve into a “he said, she said” debate? Isn’t determining a minimum competency level an awfully arbitrary job? Good questions. The answer is: the Administrator of the Courts of Nevada has already delegated the responsibility of developing transparent and reliable standards for appropriate testing for court interpreter to an entity called the National Center for State Courts, and instead “just” administers the exams. From the “Definitions” section of Nevada State Court Administrator Guidelines:

Administrative Office of the Courts (AOC) [is the] central administrative support office for the judicial branch under the direction of the Chief Justice of the Supreme Court and the State Court Administrator. The AOC administers the examinations (written and oral) required of Certified Interpreters within the State of Nevada. The examinations are developed by the National Center for State Courts, Council of Language Access Coordinators (CLAC), formerly the Consortium for Language Access in the Courts.Administrative office of the Courts of the Nevada Supreme Court, State Courts Administrator Guidelines for the Nevada Certified Court Interpreter Program, 2013, p. 3

Who is this National Center for State Courts? From the same document:

The National Center for State Courts (NCSC) […] is an independent, nonprofit organization that provides leadership and administrative assistance to state courts. The Council of Language Access Coordinators (CLAC) is comprised of states who utilize standardized test instruments in different languages to credential court interpreters. The State of Nevada became a member of the original Council in November 2001, and utilizes the CLAC’s tests to credential its court interpreters.interpreters.Administrative office of the Courts of the Nevada Supreme Court, State Courts Administrator Guidelines for the Nevada Certified Court Interpreter Program, 2013, p. 5

Nevada doesn’t have its “own” rationale for criteria that a minimally competent court interpreter must meet. The passing or minimum scores are taken from the NCSC’s Council of Language Access Coordinators or CLAC, without countering (or changing) the rationale behind those given passing rates. In its Test Construction Manual, the CLAC unambiguously states:

The level of performance the [oral interpreting] test measures is the minimum acceptable level for entry into the profession of spoken language court interpretation. These exams do not measure other aspects of the knowledge, skills, and abilities one must have to perform the duties of a court interpreter, such as engaging in appropriate forms of situational control, dressing and conducting oneself in a manner consistent with the dignity of the court, and delivering services via telephone or as a member of a team.Consortium for Language Access in the Courts, Test Construction Manual, 2010, p. 1

Quite clearly, it refers to a “minimum acceptable level” for entry in the profession of court interpreting: to drop the passing criteria below that level is tantamount to proposing to give persons a formal accreditation when they cannot show they are competent to translate in court, with the responsibility to deliver what is supposed to be complete and accurate translation. A by definition questionable performance that is also otherwise not systematically recorded or monitored – not partially, not even in occasional spot checks. So, it is likely that nobody will know what that “conditionally approved” interpreter actually has done, whether critical mistakes or omissions or additions have been made. Under any consideration, I call such a proposal utter folly.

But that’s about the oral exams; we’ve now seen that the proposed lowering of passing criteria for the oral exams is likely to produce dangerously incompetent court interpreting. So then, what about the written exams? What is the harm in lowering the bar there? The written exam is also developed by the NCSC and is administered (by the Nevada AOC’s Court Interpreter Program) at the end of an also required two-day workshop. It tests subjects that have been intensively covered during that workshop:

The AOC uses interpreting tests developed by the NCSC in a multi-state collaborative effort to share interpreting tests for the certification of court interpreters. These exams consist of:

4.3.1.1 A written test consisting of three stand-alone sections:

Lowering the required passing score below the established 80% – which is the same threshold for all aspiring certified and registered court interpreters – admits people as court interpreters who are proven less proficient in the English language, court terminology and how to behave in court. The logic behind this proposal eludes me, other than to signify perhaps that it’s all unnecessarily complicated, or that those subjects are not too important to pass… The regular passing score of 80% suggests that it’s a relatively trivial test. It is. After all, the workshop itself comprises not more than two days; carefully studying the Code of Professional Responsibilities isn’t too much to ask either. This characterization as a fairly simple test is also borne out by at least half of candidates passing the written exam. By comparison, only a fraction passes the oral exam. The intent of lowering that passing score for the written exam is not supported by much more than a desire to hand out more qualifications without duly considering common sense and well-established minimum criteria. Put most bluntly: the proposal to lower the written exam passing score seems more like a petty swipe at the credibility of the court interpreting profession.

This leaves the oral proficiency interview, for which the proposed minimum passing level inexplicably is also dropped, specifically from a scoring rate of 12 down to 10 on the language performance assessment administered by ALTA Language Services, Inc (ALTA). Curiously, in the new proposal before the Nevada Court Interpreter Program’s Advisory Committee there is no indication to also and analogously lower the current minimum passing score of “Superior” from Language Testing International (LTI). Maybe LTI was overlooked as the “other” provider of OPI assessments. Either way, how does an OPI work?

The OPI is designed as an interactive conversation and ‘role-play’ scenario, which adapts to the speaking ability of the prospective court interpreter who is being tested. The topics discussed vary, which allows concrete responses and assessment of each level of functional communication ability from the candidate taking the test. The interview’s duration is approximately 20-30 minutes with a language professional. Each interview is digitally recorded and it is the property of each testing agency. The interpreter must receive a score of ’12’ on ALTA?s testing scale or a ‘Superior’ rating according to the ACTFL Proficiency Guidelines for the LTI interview to pass the OPI certification for Nevada.Nevada Supreme Court, Administrative Office of the Courts, General OPI Information (2010)

The ALTA language proficiency testing score – which is being proposed to being lowered from 12 to 10 for the Conditionally Approved credential – describes its successive language competency levels as follows (Source: ALTA website).

LevelGeneral Description
1A level 1 speaker has no ability whatsoever in the language. He/She cannot understand anything and can convey nothing.
2A level 2 speaker can understand isolated words and simple expressions. He/She can convey isolated words or simple expressions and memorized sentences.
3A level 3 person can understand and express simple sentences using subjects and verbs in the present tense. The range of vocabulary is limited to elementary needs and some basic courtesies.
4The level 4 person can understand basic sentences around the immediate setting as well as basic questions. He/She can express simple ideas using the present tense and may occasionally use other simple tenses. He/She can convey basic information, but has difficulty even in basic conversations.
5A person at a level 5 has the ability to participate in basic conversations. The subjects are routine in nature and tend to be repetitive, for example weather. A level 5 speaker uses primarily the present tense and cannot use advanced tenses, thus is very restricted on expressing and understanding any subject other than what is most familiar to him/her. Speech is slow, and he/she requires more rephrasing and repetition to understand a native speaker.
6A level 6 person can use and understand the present, past and future tenses with some errors. He/She does not use advanced tenses. He/She can easily participate in a conversation on basic subjects like weather, but not in a general conversation. He/She usually cannot understand normal native rates of speech.
7A person at a level 7 cannot easily participate in general conversations. He/She can participate in conversations that are routine or on topics that are well known to the person. He/She will have trouble with a native speaker’s normal pace. He/She will use simple tenses with a few errors, but will avoid advanced tenses. A candidate at this level in a general conversation will cause misunderstandings between himself/herself and the listener based on lack of ability to convey clearly his/her message.
8A person at a level 8 can participate in general conversations surrounding routine and topics in most social and work-related settings. He/She will have trouble with some normal speed conversations and with topics that are more advanced or specialized. He/She may lack the capability to speak at a normal speed, and will not use advanced grammatical structures or will make many mistakes. A candidate at this level will potentially cause misunderstandings between himself/herself and the listener based on some lack of ability to convey clearly his/her message.
9A person at a level 9 can successfully handle in-depth conversations in the target language, on a broad range of subjects and at a normal rate of speech. He/She has difficulty understanding some slang or idioms or some advanced grammatical structures, but can figure out what is said by the context of the discussion. When speaking, a person at a level 9 can express himself/herself over a broad range of topics at a normal speed. He/She may have a noticeable accent and will make grammatical errors, for example with advanced tenses, but the errors will not cause misunderstanding to a native speaker.
10A person at a level 10 can handle all of the tasks that a level 9 can, with the addition of demonstrating skills such as selling and persuasion. He/She can successfully handle in-depth client questions, and does not require as much contextual support for understanding of slang and idioms. A person at this level is able to select vocabulary that conveys a finer shade of meaning with more precision than a level 9 and can better support his/her opinions. Errors in speech are few, are limited to advanced grammatical situations and do not affect understanding.
11A person at a level 11 is nearly fluent. He/She can handle a wide variety of communicative tasks with finesse. His/her communication is close to that of a well-educated speaker, and only encounters difficulty if speech is highly abstract. Errors in speech are very few, are limited to advanced grammatical situations and do not affect understanding.
12The level 12 oral skills are equivalent to well-educated native fluency. The person can understand everything said in the language and can speak with precision and finesse using the full range of grammar and vocabulary. Some weakness may occur with the use of idiomatic and colloquial expressions. A non-native or regional accent may be present.
12+Level 12+ is a well-educated, distinguished speaker with superior native fluency. A person at this level not only speaks in a native-like manner and is perceived as native, but can express himself or herself articulately on any subject.

What I find striking is that the proposal to allow level 10 speakers to interpret in courts deems people competent enough when they are not even nearly fluent (which is defined in the next higher level 11) yet apparently they’re suitable for court interpreting. It troubles me that it is apparently OK when “errors in speech are few, are limited to advanced grammatical situations and do not affect understanding” because the idea for a competent court interpreter is not to just get the meaning across (i.e. achieve an effective understanding of the speaker) but to offer a complete and accurate translation (i.e.: without omissions, additions or alterations) and using the same or a similar register as the speaker. Nuance matters; if the speaker has a certain feature of speech, a level 10 speaker will hardly be able to convey that in the other language.

Those details matter greatly; they affect for example the perception (even the credibility) of a witness. A level 10 speaker is not able to convey those details accurately and reliably, let alone comfortably and naturally, so as to not interfere or disrupt the flow of speech and the proceeding as a whole. There is a very good chance that as a result, an occurrence of unusual features of speech (e.g. certain grammatical errors, filler words or mannerisms) creates ambiguity and confusion in court, as those irregularities may be due to error (incompetence) by the interpreter, or actually be taken from the speaker (but correctly conveyed by the interpreter). That is why the passing OPI scoring has been established by ALTA for very good reason at the minimum level 12: to ensure that the speaker is not just “understood” at a purely semantic sense of what is being said, but heard as-is in his or her own words but properly translated into the other language, warts and all.

Again, there is no indication in the proposal before the Advisory Committee to lower the current minimum passing score of “Superior” from the “other” OPI testing agency, LTI. Even so, for the sake of completeness, here’s the description of the Superior rating (i.e. the passing rating) on the ACTFL testing scale as applied by LTI. For the other rating levels, you can follow the link given:

Speakers at the Superior level are able to communicate with accuracy and fluency in order to participate fully and effectively in conversations on a variety of topics in formal and informal settings from both concrete and abstract perspectives. They discuss their interests and special fields of competence, explain complex matters in detail, and provide lengthy and coherent narrations, all with ease, fluency, and accuracy. They present their opinions on a number of issues of interest to them, such as social and political issues, and provide structured arguments to support these opinions. They are able to construct and develop hypotheses to explore alternative possibilities. When appropriate, these speakers use extended discourse without unnaturally lengthy hesitation to make their point, even when engaged in abstract elaborations. Such discourse, while coherent, may still be influenced by language patterns other than those of the target language. Superior-level speakers employ a variety of interactive and discourse strategies, such as turn-taking and separating main ideas from supporting information through the use of syntactic, lexical, and phonetic devices. Speakers at the Superior level demonstrate no pattern of error in the use of basic structures, although they may make sporadic errors, particularly in low-frequency structures and in complex high-frequency structures. Such errors, if they do occur, do not distract the native interlocutor or interfere with communication.ACTFL Proficiency Guidelines 2012 – Speaking, p. 5

One last thought about the intended lowering of the passing score for the OPI: we are talking about the prospect of appointing as court interpreters people who have not demonstrated proficiency in specific court interpreting skills in any way. Meaning, we can’t rely on the candidate’s competency in the three court interpreting modes (sight translation, and consecutive and simultaneous interpreting) yet we’re also dropping the language proficiency requirement level to less than nearly fluent level… This is not just objectionable, it is frankly an incomprehensible proposition for any court interpreting expert. One would expect any court interpreter sanctioned for recurring use in court at the very least to be fluent in both languages. Without ifs or buts.

The significance of referring to “Alternate” versus “Conditionally Approved” court interpreters

I believe there’s a great significance in the terms chosen of respectively “alternate court interpreter” and “conditionally approved court interpreter”. It is important to note here that AB 365 does not say which criteria must be met by a candidate for the alternate court interpreter credential. The legislature did however mandate the Administrator of the Courts to establish a formal order of preference according to which courts must appoint a certified court interpreter before they consider appointing an alternate court interpreter. This is how that particular requirement is phrased:

The criteria and procedures [for the appointment of alternate court interpreters] established pursuant to paragraph (b) of subsection 1 must set forth an order of preference, subject to the direction of a court for the appointment of a certified court interpreter before an alternate court interpreter.Source: NRS 1.510 subsection 5

The relevance of the term Alternate Court Interpreter resides in the generally understood, i.e. the dictionary meaning of the word “alternate” which denotes an equivalent and  exchangeable alternative for something or someone else. In other words, something otherwise equal but for the order in which it appears. A clear example of the “alternate” term is used precisely in courts in Nevada, for the alternate juror. It is a juror who is deemed an equal to the members of the jury panel but who is in a standby position, ready to take over jury duties from a juror who is excused (after being impaneled by the presiding judge) from further service on the jury panel; an alternate juror is therefor not in any way less qualified, and does not meet any lesser (or lower) selection criteria than the “regular” jurors. That is what makes such a juror truly an alternate juror.

So, I construe an Alternate Court Interpreter to signify a court interpreter who otherwise (as far as language mastery and active interpreting skills are concerned) is exchangeable with a regularly certified or registered court interpreter. For example, this could be a court interpreter who doesn’t meet the initial requirement of 40 hours court work or observation experience, or hasn’t completed mandatory continuing education, or hasn’t paid the fee for certification/registration. Such a more “administrative” type deficiency does by itself not question the alternate court interpreter’s ability to perform, from either a linguistic or purely interpreting skills based point of view.

This interpretation of the term “alternate” as meaning “basically exchangeable” with a regularly accredited (certified or registered) court interpreter is fully coherent with the legislature’s intent. The legislature can hardly be taken to intend that a costly Court Interpreter Program in Nevada undercuts its own credentialing program after it has already adopted objective and well-established (in dozens of states across the nation) minimum necessary qualifications, and allow devising a credential denoting a substandard performance level as somehow equivalent to the certified court interpreter. It is altogether nonsense, really, to differentiate among substandard performance levels. The minimum competency levels and their assessment criteria have been established by subject experts for a very good reason:

Although the U.S. Constitution does not specifically guarantee the right to an interpreter for court proceedings, this right has been established by application of the Sixth Amendment (defendant’s right to confront adverse witnesses and his/her right to participate in his own defense, including the assistance of counsel) as well as the Fifth Amendment (due process clause), as applied to the states through the Fourteenth Amendment. The interpreter protects those rights by ensuring the defendant’s “presence” when his case is heard, providing a complete interpretation of everything that is said in court.Source: Certified Court Interpreter Program, Administrative Office of the Courts, Nevada Supreme Court; Certified Court Interpreter Program Brochure, 2013, p. 1

If one cannot rely on such a complete (and accurate) interpretation, the bedrock integrity of due process is in jeopardy. It’s that simple. That is the whole point of establishing credentials with minimum performance standards for court interpreters, to offer a clear, uniform and easily verifiable means to rely on an accredited court interpreter’s competent performance and professional demeanor.

Of course, in a situation of hardship and upon a showing of good cause one makes do with whatever is available at that moment; sometimes, a barely acceptable interpreter may be preferable to having no interpreter at all. But such a make-do interpreter should not and can not be considered as an alternate interpreter, as a replacement of a regularly accredited court interpreter as a reliable provider of a complete and accurate interpretation. Such a deemed provisionally qualified interpreter is instead much like an emergency patch for a car radiator that sprung a leak. It is not comparable to a proper mechanic’s repair job; it gets you home, just don’t exercise it like a race car or you’ll soon run into deep trouble.

The figure of a provisionally qualified court interpreter is not my invention. It is being used throughout other states in the USA. For example, in the neighboring state of California where the California Rules of Court quite narrowly spell out when a non-credentialed (i.e. not certified or registered) court interpreters may be used. In fact, they distinguish between a someone who is non-certified but provisionally qualified, and someone who is non-certified and not provisionally qualified. This latter case is basically allowed for incidental, emergency-type and brief hearings where there’s really no other, credentialed alternative available, and moreover: the use of such a doubly non-conforming or “no-no” interpreter for the Spanish language is also disallowed in counties with a population over 80,000 people.

The provisionally qualified interpreter may be appointed and used in California courts only after a formal finding by the presiding judge of the court in question (that formal appointment by the presiding judge must be submitted to Sacramento via the INT-110 form). There’s also a requirement to submit the formal finding of unavailability (of a certified interpreter) via the INT-120 form to Sacramento detailing the facts and circumstances of that interpreter’s appointment. An interpreter may be deemed provisionally qualified only for a period up to six months. After that, another due diligence effort is required to locate a duly accredited court interpreter instead, and another form including the presiding judge’s finding must be submitted to Sacramento. Evidently, this documented use of a provisionally qualified court interpreter deters the use of such non-credentialed interpreters out of convenience.

I believe that the provisionally qualified court interpreter (which incidentally I find is a much more apt and felicitous term than “Alternate Court Interpreter” as its likely intended equivalent in Nevada) in the case of California is quite well framed in legal and procedural terms. It is a pity that, in the case of Nevada, the Legislature chose to leave it up to the Administrator of the Courts, with no indication whatsoever of limitation of the use of non-credentialed interpreters, other than indicating a mere order of preference in appointing. It’s not just disappointing, it’s indicative of a lack of interest in proper regulation of a key profession within the judicial constellation.

All said, I believe that the Alternate Court Interpreter intended by the Nevada Legislature refers not to a substandard level of competency (compare to the provisionally qualified court interpreter in California) but instead to a court interpreter who – while having demonstrated the necessary fundamental, minimum linguistic and interpreting skills – does not meet other, more “administrative” type criteria. Such a “technically” or “practically equivalent” interpreter offers at least some reason to have confidence in his/her performance as a court interpreter, as long as the fundamental linguistic and interpreting skills are robust for that alternate court interpreter. By contrast, someone who has not (yet) met the minimum acceptable level for entry into the profession of spoken language court interpretation (i.e. who has not demonstrated the fundamental, minimum linguistic and interpreting skills) is not a proper “exchangeable” replacement as a court interpreter, i.e. cannot be considered suitable as an alternate court interpreter.

Wrapping up my commentary on the proposal to introduce some “Conditionally Approved Court Interpreter” I’ll turn now to the chosen term itself, which as I stated at the beginning of this writing I consider both highly revealing and deeply troubling.

If we look at the general (“dictionary”) understanding of something that is conditionally approved, generally the impression is that all otherwise applicable criteria have been met but for a some formality; there is nothing prima facie suggesting a deficiency or a substandard (“less than acceptable”) level of criteria being applied. Save perhaps for the submission of some additional documentation and a final approval round, all seems perfect in order. A common example is that of the conditionally approved loan:

A conditionally approved loan is a loan approval based on the financial and credit information that an applicant has provided, and it is subject to final verification. Final verification includes employment and income verification, and additional documentation, such as pay stubs, bank statements and utility bills, is required before the loan is completely approved.Reference.com - What does 'conditionally approved loan' mean?

Clearly, the idea is not that someone meeting “conditional approval” standards for a loan meets some alternative criteria levels that are below the normal approval standard. In the case of the proposed lower court interpreter accreditation standard, there’s not really anything “conditional” about the “approval” other than meeting lower standards that in fact are below minimally acceptable performance levels according to the NCSC’s CLAC, the same entity that the Nevada Court Interpreter Program relies on for its accreditation exams. The the pending approval is therefor just as predicated on certain passing criteria (albeit critically lower ones) as is the certification or “regular” registration or certification of candidate court interpreters. The term “conditional” is simply an empty qualifier.

The term “approved” on the other hand is little but an equivocating and in my view even flat out misleading term. It suggests an authoritative qualification of competency: it is indeed a seal of approval issued by Nevada’s official judicial administrative entity. Yet there’s no qualitative, equally authoritative rationale or standard description available to bolster that authoritative seal of approval, other than as a mere signature of its origin. It’s as if the US Department of State were to issue an assignation as “Conditionally Approved Doorknobs” while those doorknobs meet substandard quality standards, and the State Department itself doesn’t have credentialing stature of its own. That is why I believe the “approved” is a misleading qualifier: it says nothing about the intrinsic value of the accreditation awarded.

Clearly, provisionally qualified court interpreter is a better alternative, as that is at least semantically appropriate. Or, instead of devising yet another designation one would just use the term that already has been introduced by the state legislature: Alternate Court Interpreter. Of course, this would imply that the applicable accreditation standards be placed higher than at the proposed level… Perhaps that is precisely why yet another term was chosen.

Either way, my conclusion is that both the proposed accreditation standard and its proposed assignation label are a step into the abyss, dangerously inviting unqualified persons to take on the responsibility of a court interpreter, which in the Court Interpreter Program’s own words describing the constitutional validation of a court interpreter’s job, is highlighted in bold below:

Although the U.S. Constitution does not specifically guarantee the right to an interpreter for court proceedings, this right has been established by application of the Sixth Amendment (defendant’s right to confront adverse witnesses and his/her right to participate in his own defense, including the assistance of counsel) as well as the Fifth Amendment (due process clause), as applied to the states through the Fourteenth Amendment. The interpreter protects those rights by ensuring the defendant’s “presence” when his case is heard, providing a complete interpretation of everything that is said in court.Source: Certified Court Interpreter Program, Administrative Office of the Courts, Nevada Supreme Court; Certified Court Interpreter Program Brochure, 2013, p. 1

Perhaps the Advisory Committee considers the “limited” term of the assignation of a maximum of two years (renewable only once) for Conditionally Approved Court Interpreters sufficient guarantee against their possible abuse, so as to avoid their use at the detriment of “regular” certified or registered court interpreters. Perhaps even in conjunction with the “order of preference” in appointing them, as mandated by the legislature by AB 365 (even though, on the other hand, using this argument raises the question why a condition for an Alternate Court Interpreter is suddenly applied to a differently termed Conditionally Approved Court Interpreter, calling into question the difference in labeling, and the need of introducing yet another assignation level altogether).

I’m utterly unconvinced that the signal sent to the market by this proposal – introducing a new, substandard level of court interpreting – favors the supply of duly credentialed interpreters. It is, as I said earlier, at best a stopgap measure; it is not a substantial or systemic remedy for the underlying market deficiencies, deterring the sufficient influx and permanence of duly qualified court interpreters.

An alternative, better avenue to solve the ulterior problem

Evidently, I take no position on the possible motivation that lies behind a proposal to lower professional standards that ultimately endangers due process. I take it, by sheer deduction, that the intention behind it is to address that shortfall in supply of duly credentialed court interpreters. Let’s walk down the alternative paths following this market-based approach:

  1. That shortfall might be due to credentialing standards that are set too high. Complete and accurate interpretation is not really required in Nevada courts.
  2. There could be an insufficient pool of candidates in Nevada that are capable of learning to perform according to fairly uniform, nationwide standards.
  3. There may be a deficient recruitment, education and retention system in Nevada; not enough apt candidates step into and stay in the profession.

I think we can safely dismiss outright the first as nonsensical. Not only is complete and accurate court interpreting necessary in Nevada courts, it is stated in several ways, in differing publications by the Nevada Court Interpreter Program that complete and accurate court interpreting is not a negotiable item; it may, exceptionally and with good cause, be given up to address an incidental and unusual situation. There is no need to introduce a new official substandard designation to address those exceptions; a carefully crafted regulation by the Administrator of the Court dictating the use of non-certified (or non-registered) court interpreters should suffice. The state of California has already done some useful heavy lifting in that regard, which may well serve by way of example.

The idea that the CLAC’s testing standards are somehow set to high for Nevada, certainly in absence of Nevada’s own set of convincingly justified alternative standards, is a preposterously ill-construed notion. It defies both logic and the market reality in other administrative circles (e.g. in federal / US courts, or in other states with a well-established and mature court interpreter market such as California) the CLAC’s testing standards form a bar to access of a sufficient supply of adequately prepared court interpreters. I note additionally that the CLAC’s testing standards are molded, in structure and content, to a fair extent after the federal court interpreter standards. I certainly haven’t heard about analogous proposals circulating at the federal government level, propounding the addition of a lowered accreditation standard for federal court interpreters…

The second idea, that there are insufficient numbers of capable potential court interpreters, can also be dismissed. Although I don’t have the exact numbers at hand, there is a regular influx of newly minted, newly accredited court interpreters. Given the overall population size and demographics of Nevada, it is for example not credible to assert that the pool of available people that master (i.e. at college level) both the English and Spanish languages and also have the potential to acquire adequate interpreting skills is just too small to attract candidates for court interpreters. I’m not further commenting on the possible suggestion that the level of Spanish and English competency of bilingual, near-native level speakers in Nevada differs substantially from surrounding states to justify lowering testing standards, either.

No: the problem resides in the market fundamentals for court interpreters in Nevada. To recruit and retain adequate numbers of adequately competent court interpreters, the profession must be adequately attractive. The question then becomes whether the profession is sufficiently attractive in Nevada to prospective court interpreters. I submit that the current shortfall in available adequately qualified court interpreters convincingly answers that in the negative. I further submit that there’s an equally obvious lacking power of retention, which is illustrated by the churning rate of certified and registered court interpreters in Nevada, i.e. the number of interpreters who drop out and don’t renew their credential after their initial certification/registration period expires. I look forward to publication of the pertinent specific numbers by the Nevada Court Interpreter Program, so as to solidify this discussion either way.

On the other hand, I believe that there’s a fundamental inadequacy in educational resources available to prospective court interpreters in Nevada, which they need to improve their knowledge, skills and abilities to pass the accreditation tests. It’s much harder to pass an exam if it’s also hard to get by education opportunities; it’s not surprising to see low passing rates in that case.

But more than just lacking education opportunities at the entry level, there is in my opinion also a deficient offering of continuing education opportunities available to current certified and registered court interpreters in Nevada. In spite of that, the Court Interpreter Program imposes – compared to other states – higher criteria in Nevada for renewal. This is true not only in the number of hours or credits required but also in the composition (i.e. the nature or content) of continuing education (CE) activities that are recognized for CE purposes. This is worsened as the Court Interpreter Program inexplicably demands that CE credits be earned fairly evenly, i.e. every year a minimum of ten credits for a total of the required forty credits over three years. The problem here is that, given the conjunction of a dearth of quality CE opportunities within Nevada, it forms a systemic bar against following large CE events (where one can obtain a large number of CE credits). Seriously, what is the problem with making a concentrated effort to acquire the necessary total CE credits? To me, it smacks of deterrence by bureaucratic overreach in requirements.

Something even more egregious is that the proposed conditionally approved court interpreter has a much lower CE renewal requirement (after a period no longer than two years) of a mere six (6) continuing education credits for the maximum of two years during which the assignation is awarded; by contrast, any certified or registered court interpreter must present proof of a minimum of ten CE credits per year, that’s twenty CE credits during the same period (even though their renewal cycle span three years, requiring a total of no less than 40 CE credits!). A conditionally approved court interpreter is required to make only 30% of the effort that the certified interpreter must make to keep the credential. It is frankly incomprehensible that someone admitted for work in courts as a court interpreter with qualifications below that of regularly certified or registered court interpreters is required to turn is less proof of continuing education efforts. If at all, the conditionally approved court interpreter should be required to turn over proof of more CE credits, certainly not less!

In short, a remedy can be found in the removal of unjustified bureaucratic bars – i.e. by lowering access to out-of-state providers of CE activities by recognizing the CE credits from selected other states via a straightforward conversion system, especially when taken together with a sensible relaxation of per-year earned CE credit criteria – appears to me as a much more effective and simple way to help keep court interpreters in Nevada in the profession. Let’s cut some red tape!

An additional distortion in the regular function of supply and demand in the court interpreting market in Nevada is the structure of remuneration. I’m not going beyond pointing out that there’s no more persuasion to attract suitable numbers of adequate professionals than adequate pay; if you don’t pay enough, you’ll end up with insufficient supply. It’s pretty simple stuff really. Now, in Nevada the prevailing practice is payment of a per-hour fee. What this means is that when you’re called in to cover a hearing in a given case, you’re only paid a given minimum of one (maybe two hours) and yet you’re actually expected to set aside the whole session (i.e. the morning or the afternoon) for that court, in case that the hearing goes either long or is trailed to a later moment, or maybe another case also requires your services as a court interpreter. If you only guarantee availability for that minimum of one or two hours, you’re not going to get many calls.

This earning potential gap between required availability and actual payment simply means you’re typically blocking off that entire session (you’re not taking on additional work, and you can’t for example attend courses for CE credits, either) while still only being paid for a fraction of it. Few learned professions will accept this without a commensurately higher per-hour fee/rate structure, much like attorneys often have a relatively high per-hour fee, which covers (much) more than “just” the time that they’re actually litigating in court or drafting court papers. Court interpreters should be paid for the full extent of the time that the court expects their availability, whether interpreting in court, helping to prepare a case, or standing by.

There’s a very simple solution for this: pay contract court interpreters per session, in other words: pay them per half day (or full day, if the case load justifies it). Not only does this solve in one fell swoop the problem of double booking (whereby a court interpreter simply bolts after a certain time to cover some other interpreting job, leaving the court hanging) it actually helps keeping court interpreters in the profession, which is especially true in the case of languages other than Spanish (LOTS). Many times, LOTS interpreters don’t get enough demand in court work to make themselves available full time for work, or can even afford to take off an hour or two to assist a court from their “regular” daytime job. Yet their cost to maintain their accreditation is exactly the same as that for their certified colleagues (especially those working in Spanish, who have much more court work opportunities than, say, a Hmong language interpreter). Per session pay makes it also affordable to them to set aside the whole session, which makes language access in court possible altogether.

It is a simple matter of paying for availability: courts should pay reasonable fees so as to have a reasonable supply of language services guaranteed available. The answer is definitely not to short-circuit and lower performance criteria. This system of per-session pay is also implemented with much success in California. Courts there also pay for the contract (“freelance”) court interpreter’s availability. They also differentiate in pay between a certified (or registered) court interpreter and non-certified court interpreter; an interesting additional stimulus for provisionally qualified court interpreters to achieve full certification or registration. If you’re interested, here’s the payment policy for contract court interpreters in California.

Another thing altogether is that the Nevada legislature at the very least suggests that court interpreters should bear the cost of the certification program. Of course it’s reasonable to impose fees on court interpreters, as in any other profession where government interferes in its regulation. But if one suggests that the profession pays for its own regulation, it logically should be matched with an reasonably equitable earning opportunity as well, lest the profession is created here mostly for optical compliance with federal equal access requirements, only to be left to die on the vine. It does not pass the sniff test to pay minimally and per hour within a severely minimized scope of opportunities (see below), without offering a reasonable foundation for court interpreters to build a dedicated profession on it when there’s demand for it, and yet expect court interpreters to pay for the Administrator of the Court’s regulation of their profession:

The Court Administrator may impose on a court interpreter any fees necessary to reimburse the Court Administrator for the cost of administering the programNRS 1.520 subsection 2(a)

There’s also a fundamental issue in that court interpreters are currently not hired for all cases before courts in Nevada where a party (whether defendant or witness) requires language assistance. I understand full well that a broadening of appointments of court interpreters has a direct fiscal impact. And in the particular case of Nevada, a great sensitivity prevails toward the fiscal impact of any proposal to increase public expenditure. Also, the issue is of course not to subsidize a profession, although in the case of Nevada, I think, it is much more apt to refer to addressing a problem of structurally underfunded professional court services that drives professionals into starvation and out of their profession. The fundamental question is simply one of language access, equitably comparable to that of a native English speakers standing before the court as a witness or accused in a criminal matter.

I know for example that in larger jurisdictions – at least as observed by me during the first half of this year – people with a case before a specialty court do not systematically receive the assistance of a court interpreter; another example where court interpreter services are not systematically engaged whenever needed and available is the case of interviews conducted in the regular course of criminal court cases by officers of pretrial services. All in all, I wonder what metrics the Nevada Court Interpreter Program can provide so as to compare them with numbers from California, to see court interpreter usage per capita, per case type (family law, criminal law, etc.) and per language. I strongly suspect that a systemic pattern of under-engagement emerges.

I’d like to take a moment to stress that this is most decidedly not an exercise in finger-pointing or allocating some form of blame; it is an inventory of structural shortcomings within the current framework in which professional court interpreters in Nevada are forced to operate. A framework which by operation and effect drives talent away, forced to look elsewhere for income; the resulting and much decried shortage of credentialed professionals cannot be a surprise.

Another element that is due for serious consideration is the admission and certified use in court of translated documents and instruments in a language other than English. Obviously, regulation of standards for judicial translation is well overdue in this state – as is the regulation of the more broad translation field – but I believe there is a very simple way to both dramatically increase the reliability of translations of documents used in court and do this without hardly a fiscal impact. Once more, I look at the case of the state of California, where such translated documents for use before a court there must be certified by either a certified translator who is currently accredited by the American Translators Association (ATA) or a certified (or registered) court interpreter accredited before the California Judicial Council, before the court clerk may certify and accept it. Basically, one of the two must provide a notarized affidavit of (personal) translation and/or certification of accuracy of the translation. Something like this would in my opinion be a great step in establishing reliable translation of documents.

This is how California Government Code regulates certification of translated documents for use in court:

27293. (a) (1) Except as otherwise provided in subdivision (b), if an instrument intended for record is executed or certified in whole or in part in a language other than English, the recorder shall not accept the instrument for record.

(2) (A) A translation in English of an instrument executed or certified in whole or in part in a language other than English may be presented to the county clerk for verification that the translation was performed by a certified or registered court interpreter, as described in Section 68561, or by an accredited translator registered with the American Translators Association. The translation shall be accompanied by a notarized declaration by the interpreter or translator that the translation is true and accurate, and includes the certification, qualification, or registration of the interpreter or translator. The clerk shall consult an Internet Web site maintained by the Judicial Council or the American Translators Association in verifying the certification, qualification, or registration of the interpreter or translator.

(B) Upon verification that the translation was performed by an interpreter or translator described in subparagraph (A), and that the translation is accompanied by a notarized declaration as required pursuant to subparagraph (A), the clerk shall duly make certification of that verification under seal of the county, attach the certification to the translation, and attach the certified translation to the original instrument.

(C) For this verification and certification, a fee of ten dollars ($10) shall be paid to the county clerk for each document submitted for certification. The attached original instrument and certified translation may be presented to the recorder, and, upon payment of the usual fees, the recorder shall accept and permanently file the instrument and record the certified translation. The recording of the certified translation gives notice and is of the same effect as the recording of an original instrument. Certified copies of the recorded translation may be recorded in other counties, with the same effect as the recording of the original translation, provided, however, that in those counties where a photostatic or photographic method of recording is employed, the whole instrument, including the foreign language and the translation, may be recorded, and the original instrument returned to the party leaving it for record or upon his or her order.

(b) The provisions of subdivision (a) do not apply to any instrument offered for record that contains provisions in English and a translation of the English provisions in a language other than English, provided that the English provisions and the translation thereof are specifically set forth in state or federal law.

(c) The county clerk is not required to issue a translation certificate if he or she is unable to confirm the certification, registration, or accreditation of the translator, as required in subdivision (a).California Government Code, Chapter 6, Article 3, Section 27293

A related application of the translation affidavit / certificate is particularly important: that of transcripts of interviews and recordings of speech in another language. I have personally been involved in myriad cases where a substantial error or omission yielded a dramatically different reading of the transcript. This can be because the transcript is imperfect, or because the translation into English is imperfect – or disastrously both. To have a court interpreter at the very least sign off on a reading along of the original recording with the transcript and its translation would offer a low-cost safety measure against the more serious mishaps. Let us not forget that in the case of transcripts of speech in English there can be (and typically there are) multiple pairs of ears that can catch a major glitch. In the case of the translated transcript, the translated English version is used all to often without as much as a second reading by an expert in that language pair. Here, a certified or registered court interpreter can provide a highly valuable service. This is a procedural question that shouldn’t be hard to regulate into a statewide requirement of a minimum quality spot check.

Finally, there’s a consideration that I cannot keep to myself, even though it was one of the first thoughts that entered my mind upon hearing of the proposal to lower accreditation criteria: the tremendous under-representation of professional court interpreters in what is not just a key deliberative and consulting body but that has an advisory mission before the state judiciary about precisely court interpreting. I simply fail to understand why so few court interpreters are a part of the Certified Court Interpreters Advisory Committee, to the point that court interpreters have but a token representation. The current proposal to introduce the ill-termed “Conditionally Approved Court Interpreter” is, in my opinion, a resulting tragically near-inevitable accident.

The idea deserves attention as it addresses a fundamental problem: a systematic shortage of qualified court interpreters in Nevada. And the intent of addressing that problem is by any means laudable. Also, I do not in any way want to even suggest anything undue in that regard. I do, however, criticize both the chosen path of creating a new accreditation standard with passing requirements below minimum acceptable passing scores for entry into the profession, when those accreditation score levels levels (together the corresponding exams) have been established by experts to whom that responsibility is delegated by a Court Administrator’s Court Interpreter Program has neither the benefit of counsel of an academically accredited applied linguist who is actually specialized in interpreting matters on board, nor an alternative examination scoring rationale (and corollary methodology) to offer so as to justify an assertion of basic competency in any intended candidate for Conditionally Approved Court Interpreter that meets the current “complete and accurate” court interpreting standard. The proposal to lower passing scores so as to solve a structural availability issue are, once more, sadly an almost predictable result.

By all means, this is a proposal that is fatally flawed; it cannot be mended in part, without undoing the stability of the entire edifice. I strongly advise to return to the drawing board, and to truly seek out and listen more carefully to pertinent expertise.

The Conditionally Approved Court Interpreter is not a cure: it is a poisoned pill.

PS: I am fully aware that some other states have the figure of a Conditionally Approved Court Interpreter already implemented (for example New Jersey, Idaho, Oregon, Georgia, Delaware or Utah). For one, I’m unimpressed with that argument: an injurious practice elsewhere is definitely no validation of what is a bad idea to begin with. Secondly, it is the NCSC’s CLAC itself – the entity that develops and maintains the very examination standards that the Nevada Court Interpreter Program deploys – which has established examination passing scores that constitute the minimum permissible scoring standards to screen entry level competency. So, any downward deviation in accreditation criteria by an individual member state that does not have an equivalent, state-level panel of expertise to solidly support their rather unilateral and arbitrary lowering of scoring standards must be dismissed as dangerously misguided. Again: someone else making a grave mistake is not an exoneration for one’s own bad decision making. Willingly and knowingly wielding that argument is, however, tantamount to certifying a claim of bad decision making. Nevada isn’t some other fool’s territory.

3 Replies to “Against the proposed “Conditionally Approved” credential for Nevada Court Interpreters”

  1. In New Mexico we have non Certified Court Interpreters (JSI-Justice System Interpreters). They are required to take the NM certification exam, if an individual gets a score between 50% & 60% then he or she becomes a JSI. A JSI is allowed to interpret in Court except on Jury Trials. The passing score to become a Certified Court Interpreter is 70%. Back in my time when I took the test the passing score was 80%.

    What a shame!!!!! It seem that Nevada is following NM footsteps.

    Magdalena Girón
    NM Certified Court Interpreter
    TX Master Court Interpreter
    Member of the NM LAAC

  2. This is indeed distressing, but again, not surprising, given the fast-spreading trend of attempting to address Language Access Program budget concerns at the expense of meaningful language access itself. My excellent colleague, Magdalena, rightly pointed out that this is a reality in New Mexico and similarly in Texas. We and others in New Mexico have voiced our concerns, even at the risk of reprisals, but the AOC is firmly set on moving forward with this trend in even more disturbing ways. It has been confirmed that NM’s remote interpretation (video/telephonic) which is ongoing in spite of the complete lack of established minimum standards of practice, is going to be greatly expanded and will include the use of “JSI’s” – the so-called Justice System Interpreters who are folks that are required to pass the certification exams at the abysmally low rate of 55%! Brace yourselves – Stratus is coming your way. They have been awarded a contract to partner with the NCSC to provide remote interpreting services to state courts nationwide. The train is out of the station and barreling at us at breakneck speed. I’m still waiting for NAJIT to issue some sort of response in defense of the profession with regards to this alarming situation.
    Armida Price Hernandez
    Federal & NM State Certified Court Interpreter
    Previously CA State Certified Court Interpreter – but no longer working or living in CA

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