In favor of recording court interpreter performance

A self-respecting, integer and fair system can’t get away with performance standards with varying yardsticks depending on the language spoken.

When it comes to defining professionalism I’m a bit old school; to me, it is a two-way street. I mean that the true determinant of a professional is neither being paid or the rate of the pay itself – ideally that merely reflects success in the market place – but the degree of accountability given by the profession. That may well sound like a somewhat meaningless truism but when applied to the current state of court interpreting in the United States, at least based on my own observations and experiences in Nevada and California, I’m not so sure we can collectively truly claim that we own that gold standard. What guarantee can we really offer an objectively observing layperson that we truly do a good job as qualified and professional state court interpreters?

At this moment I’d say not that much, quite frankly. I find that a very unsettling thought, as I deliberately referred to qualified and professional state court interpreters. Contrary to using so-called provisionally qualified interpreters – whether pressed into service in a pinch, absent any qualified alternatives or following questionable hiring standards doing so is, like the proverbial Hail Mary pass, a dangerous resort justifiable only by a true state of emergency – the use of qualified, professional court interpreters implies and in my opinion actually demands very high standards of accountability. So, restating that previous question: what can we show to back our hard-earned badges, in support of our professional authority, and justifying our standing as a reliable language equalizing instrument of the Court?

Actually, there is also a very materially grounded argument in favor of seeking a solid answer to that question, just based on our essential role as public servants. As we work for the Courts, we work within one of three branches of government. That should already motivate us to show a fair amount of accountability toward our funding, provided by hard-working taxpayers. So, we owe that responsible exercise in transparency not only to our profession and our clients – be it the courts or the non-native English-speaking parties we serve – but also and especially to our material sponsors: We, the People. I see it as part of our contract with society.

Now, looking more closely at the intrinsic value of an interpreter badge, those aren’t given out in cereal boxes of course. We must earn them. And when we do, it is because we have satisfactorily demonstrated competency in several specific areas of knowledge, skills and abilities, or SKAs as human resources managers refer to it. But exams only measure performance at that particular moment. After passing the court interpreter exams, there are no further checkpoints to prove ongoing competency. As long as one meets the continuing education requirements, regularly submits the necessary paperwork, pays the applicable fees, and doesn’t run afoul of the Code of Professional Responsibilities, there are no mandatory exams after initially having earned the court interpreter badge. I find that by itself a remarkable thing to ponder; I’ll reflect on that more deeply on a separate occasion.

Keeping that in mind, it troubles me that a court interpreter all too often is the only person in the courtroom able to determine whether he or she is doing the job competently. To me, this is anything but an academic consideration. The very essence of integrity of the judicial system demands that statements are reliably translated. Whenever that assumption is challenged there had better be a solid answer. Absent currently unrealistic possibilities, such as always having a second qualified interpreter present, what can we do then to afford a reasonable recourse, whether on the spot or after the fact, when a court interpreter’s competent performance is challenged with no one else present to authoritatively settle the issue?

In my opinion, the key to answering this fundamental question of professional transparency is in defining proper measures of accountability, after the same standards and principles that are ordinarily applied as well to native level English speakers in our courts. Although I have a quibble or two with the proposition I occasionally hear, according to which a court interpreter’s essential role is to put a non-native English speaker on the same footing as a native English speaker of a like background (that topic is great material for a separate exploration as well) I naturally subscribe to that fundamental notion of equity and parity.

When everybody shares the language of business of the court, hypothetical differences of opinion on what was actually said during a particular formal hearing can be settled in several ways. Ideally, there’s a formal record in the form of a transcript; that’s a simple means to verify what was said. An in-person court reporter offers the greatest confidence in an accurate record, as court interpreters make sure that everything said is indeed taken down correctly. Oftentimes, in-person court reporters also record audio of proceedings as their personal backup tool; that recording may then be available to provide clarification.

But there are many courts (e.g. in Nevada) where there are normally no in-person court reporter and, instead, the audio of proceedings are recorded; transcripts are then prepared after the fact, which naturally is less than ideal given the impossibility for the transcribing court reporter to ask for any occasionally necessary clarification, never mind the often less than perfect acoustic conditions for the recording itself (which all too often go unnoticed until it’s too late, i.e. after the fact, leading to gaps in transcripts). Aside from that, there are also courts that record proceedings generally, as a matter of regular course (e.g. for security or for transparent integrity purposes) so not only the audio but also video of disputed statements might be available in those cases. Seeing what is going on usually helps as context to (much) better understand what is being said.

Incidentally, that is why video remote interpreting is such a step up from telephonic interpreting, where such visual clues are completely absent. Even so, the monaural nature of sound recording – with or without video – is still a far cry from the natural stereophonic and in fact three-dimensional sound perception of the same statements by a live, in-person court interpreter (or court reporter). That is why an experienced court interpreter in a busy court room is often capable of picking out and tuning into a specific voice among others, talking at the same time. In contrast, it is very difficult to pick out – on the fly – one specific voice among others in a mono recording while speaking simultaneously.

Getting back finally to our scenario playing out during a hearing where all parties speak the same English language, where statements are made that are then disputed whether those actually were made or not, there may of course also be other people in the courtroom present within earshot, who could at that point offer their recollection of the statements (as they were heard and remembered of course, but that’s another topic as well). In any event, whether through a transcript made by an in-person court reporter or based on a recording, or from other witnesses, there are options available to find out what was really said; often more than just one.

Now, consider the case of the non-native English speaker and how the above possibilities might apply to assessing the court interpreter’s performance. Especially in the case of (much) less often used languages, courts are all too often flying blind without any practical safety net to reconstruct things afterward, and compare what was actually said with that particular interpreter’s rendition, to see if it passes muster or not.

That is why I believe recording the court interpreter’s renditions is necessary.

As far as I’m concerned, doing so might initially be restricted for practical reasons to certain circumstances analogous to those where transcripts are mandatory, i.e. in serious cases under the color of criminal law where the defendant is exposed to significant consequences. However, I would think that wherever liberty is at stake – where otherwise the right to government-appointed legal counsel would also rise – it is fundamentally necessary to set up some minimally enforceable standards of competency, overriding other possible considerations such as the interpreter’s right to privacy.

Of course, to effectively protect the innocent – as court interpreters we very often work with well-protected privileged communications – it would be necessary to keep those recordings under a carefully guarded cloak of confidentiality. Just as an in-person court reporter has the discretionary recourse of recording proceedings but with an obligation to keep such recordings under conditions of strictly enforced confidentiality.

But no matter the difficulties and complexities involved, the idea of devising a protocol for recording the court interpreter’s performance seems inevitable to me. Sooner or later, the need for waterproofing our professional integrity, our accountability as I referred to it at the beginning, will override other considerations. As I see it, a self-respecting, integer and fair system can’t get away with varying performance standards measured by different yardsticks depending on the language spoken. In essence, because diversity without respect for its constituents makes no sense.

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