Scales of Justice: Legal Ramifications for Sign Language Interpreters

July 27, 2016

Traditional roles, responsibilities, and accountability for work product were challenged in a 2016 court case which will affect the work of sign language interpreters moving forward, particularly in legal settings.

 

On January 27, 2016, the Court of Special Appeals for the State of Maryland filed a ruling that affects the work we do as sign language interpreters. The case is Clarence Cepheus Taylor, III v. State of Maryland.1 This ruling centers on whether a Deaf criminal defendant has the constitutional right to confront the interpreter who interpreted his ASL statements into English during a police interrogation when the State offers those interpretations as evidence against the defendant in a criminal prosecution.2

The defendant, Mr. Taylor, was arrested on the allegation that he had sexually abused minors. A hearing interpreter and a Certified Deaf Interpreter (CDI) interpreted while detectives interrogated Taylor for almost five hours. Later in court, a jury found Taylor guilty of abusing two of the seven complaining witnesses.

[Click to view post in ASL]

Although the appellate court looked at several issues regarding interpreters, the main issue in this case was whether or not the prosecution could include the statements interpreted to the police in English without calling to the stand to testify the interpreter who spoke the English.

Even though Taylor’s attorney objected at trial that an audio of an interpreter’s English-language interpretations of Taylor’s sign-language statements should not be admitted as evidence, the court allowed the jury to hear the interpreter’s voice for the almost five-hour police interview. Taylor took the stand in his own defense and contended that there were many “misinterpretations” and “miscommunications” between him and the interpreters.

How does this decision impact the lives of interpreters and Deaf people?

Interpreters are responsible for word choices and content of interpretations. According to the State’s brief, the interpreter was “merely a relay for Taylor’s own statements,” “simply conveying, in a different language” rather than providing the interpreter’s “own independent statements.” (Taylor p. 30). The appellate court disagreed. The appellate court recognized that interpretation is not a word-for-word process, but one in which the interpreter has control over the target language, in this case, English.

Police interviews need to be videotaped. The interpreters in this case were correct in having the interview recorded. Without the video, Mr. Taylor’s direct answers would be lost and only the English would remain. The videotaped recording was one of the main sources of evidence against Mr. Taylor. As stated above, the trial court allowed the State to play the entire English language recording to the jury. However, the appellate court made a distinction between the “video of the sign-language communications between Taylor and the interpreters” and “the audio of the statements by the ASL interpreter…” (p. 7). The appellate court realized that English is a distinct language from ASL and a truer understanding of what the defendant meant could be obtained through analysis of the actual signed statements. “The English words that the jurors ultimately heard in this case were not the words of Taylor, but of [the interpreter],3 expressing his opinion as to a faithful reproduction of the meaning of Taylor’s sign-language expressions.” (p. 34)

Even the best interpreters make errors, particularly when fatigue sets in. “Over the nearly five-hour course of Taylor’s interrogation, the two interpreters received only two breaks: a ten-minute break after about two and a half hours of testimony, and a two-minute break another hour later. Most of the more incriminating statements attributed to Taylor occurred during the later portions of the interrogation.” (p. 36). Interpreting services are expensive, but police interviews may need to be suspended until a second team of interpreters is available to relieve tired interpreters and monitor for errors. Interpreters are responsible to set limits on conditions that are not conducive to accuracy.

Both Deaf and hearing interpreters need to prove their skill level by obtaining education and certification. “Recognizing the high level of education, knowledge, skills, and judgment needed to produce faithful interpretations between English and sign language, Maryland typically requires that court interpreters of sign language undergo a rigorous certification process.” (p. 33). In Carla Mathers’ StreetLeverage posting, How Practicing Sign Language Interpreters Protect Against Legal Liability, she states, “An interpreter can be sued for malpractice if they undertake an assignment and do not follow the standard of care in performing that assignment. If this breach of the standard of care causes damages to any of the parties, the interpreter can be liable.”

Interpreters need to understand the adversarial legal system before accepting legal work. The Miranda warning and subsequent police interview are the first, and some would say, most important part of a legal case. Interpreters need to understand their roles and responsibilities. In this case, the detective told the interpreter to inform Taylor that anything he said could be used against him. The appellate court responded to this by stating, “A reasonable person in the interpreter’s position would expect that his English interpretations of Taylor’s statements would also be used prosecutorially.” (p. 23). This means that interpreters should expect to be subpoenaed and challenged on the stand for their interpretations. Interpreters should be ready to defend their English word choices or admit to errors. “The interpreter does not escape confrontation simply because he…did not personally observe any criminal act.” (p. 29)

Legal interpreters need to continually update their knowledge of legal decisions. For example, the legal concept of “admissibility of interpreted statements over hearsay objections” has changed over the past few years due to court decisions. (p. 42).  Unlike the past, when the interpreter was seen as a tool to decode languages other than English, now, an interpreter is “the declarant of his or her own statements about what the defendant has said.” 4 (p. 43). These changes recognize that sometimes the English that an interpreter speaks may not have the same meaning as what a Deaf person has signed. Taylor testified that the interpreter did not render the appropriate English of a conditional statement; “He testified that he told the interpreters that, if he had touched anyone, it would have been an accident, and he would have apologized.” (p.9). The statement was interpreted as a declarative stating that Mr. Taylor did touch the girls.

This decision is good for Deaf people. When stakes are high, Deaf people should challenge the accuracy of interpreters. Substantive interpretation errors should be “brought to light.” In other words, Deaf people should not be punished or disadvantaged by interpreter errors.

Conclusion

The 2016 court decision, Clarence Cepheus Taylor, III v. State of Maryland is a pivotal case in the interpreting field. It raises the issue of when an interpreter’s English statements can be used as evidence in trials without challenging the interpreter’s rendition. Going forward, we need the input of Deaf community members and Deaf and Hearing interpreters to help craft best practices and standards. Through dialogue and education, justice will be better served.

 

Nichola Schmitz, MA, CDI, SC:L, is a Trilingual Deaf Interpreter, specializing in Mexican Sign Language and Mexican gestures. She has a BA in Psychology and MA in Clinical Psychology.   Nichola has several generations of Deaf people in her family. She interprets mainly in legal and immigration hearings. She has trained Deaf and hearing interpreters in several countries including Ghana, Trinidad, and Mexico.

Questions for Consideration:

  1. Can the interpreting field develop standards for handling police interactions with Deaf people? What rules would you include in our “best practices”?
  2. How does a case like the one above change your approach to interpreting for the police?
  3. What other recent court decisions affect our work in the legal interpreting field?

 

1 The author thanks Carla Mathers for calling this case to her attention.

The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]”

Author decided against using the interpreter’s name in this article since the issues discussed reach far beyond this one instance.

See United States v. Charles 722 F.3d 1319 (11th Cir. July 25, 2013) (No. 12-14080)

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40 Comments on "Scales of Justice: Legal Ramifications for Sign Language Interpreters"

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abartley
Member
Adam Bartley

Excellent summary of the issues. Thank you for getting this out there for our community to talk about.

A full complement of qualified trained interpreters, which I am defining add at least two Certified Hearing Interpreters and two CDI’s, should be standard for all witness and suspect interrogation/interviews.

A report of a stolen laptop with no witnesses or suspects for insurance may be able to justify use of a partial team, things with higher stakes would be hard pressed to justify use of less than a full team.

Thank you again for a clear and concise summary. Well done.

Member
Suzanne Terrio
In the case you mentioned two certfied, experienced legal interpreters were used as checks and balances for each other. When the stakes are high, for lengthy Deaf witness testimony and police interrogations then then 2 Deaf interpreters and two court certified interpreters will relieve each other in hybrid pairs to guard against possible errors brought on by fatigue. As a standard practice, are my colleagues suggesting that the interpreters review the video/& audio tapes to catch necessary corrections before the evidence is submitted to the courts. Would corrections before admitting the tapes as evidence relieve the team of interpreters from… Read more »
Member
Suzanne Terrio
Just as what we type on this posting needs proofreading for typo errors before the “submit” key is hit, would we not suggest a new team of interpreters check the video/audio taping for high profile cases? Similarly if a team of raters check and balance an interpreter’s performance exam, would we not recommend the same level of caution when people’s lives are at stake? Judging from the described case, it seems like reasonable, proposed standard practices may need to be legislated to protect our interpreters , and above all, to protect our clients from the fatal consequences of human error.… Read more »
Member
Tara Potterveld
Hi Suzanne, Great comments and questions. I attended a workshop at an RID national conference by Eve Edelman-West. She discussed watching your own Miranda warning and subsequent interview. She strongly recommended that you sit with the officers and tell them any time there is an error. It works well. As for protection from liability, fixing your errors would help, but interpreters, like anyone else, can be brought into civil court to defend their actions. I don’t know of any interpreters that have been sued, but others on this list may. Nikki was hired by a defense attorney to watch a… Read more »
Member
Tara Potterveld

Hi Adam,
Thank you for your comments. It is an exciting, yet challenging time to be in our field. We are in a time of transition and growth that will help design and define future practices and protocols for legal interpretation.
Tara and Nikki

Member
Brenda Adkinson

Thank you so much for this important article. Time and time again I hear stories of unqualified and uncertified interpreters with ZERO legal education accepting police work with no regard whatsoever to the negative and quite possibly life-destroying consequences to that particular Deaf persons’ life.

Until we have serious policy changes in place which criminalizes the actions of these interpreters, I’m afraid we will continue to see and hear these types of horror stories. Until then, articles like this are our best hope of effectively waking people up and scaring the BLEEP out of them.

–Brenda, SC:L

Member
Tara Potterveld

Thank you, Brenda, for highlighting the problem of interpreters taking on legal assignments without adequate legal training. We need to continue educating Deaf people on how to ask for and receive a full team of legally trained interpreters. This education needs to start with Deaf kids in 6th or 7th grade. Imagine if every Deaf person arrested knew how to ask for an attorney and legally trained interpreters before talking to the police.
Tara and Nikki

Member
Brenda Adkinson

Tara, on that note, I experimented at the last legal
workshop I taught a few weeks ago and invited members of the Deaf community at no cost. 8 Deaf attendees showed up. I was thrilled!!! Now these 8 individuals have learned and been exposed to how legal interpreters should be behaving, terminology, standard procedures, etc. and they can pass on that info to other Deaf individuals. It also allowed those Deaf individuals to consider becoming CDIs as I incorporated them into the role playing activities. It was awesome.

We have the power to influence charge. We really do.

Member
Tara Potterveld

Fantastic! Thank you,
Tara and Nikki

Member

Thank you for this excellent article. I would like to have permission to print and share it in a training we are doing.

Member
Tara Potterveld

Yes, you and anyone who wants to use this article has our permission. (Give credit and links to StreetLeverage). Use this article far and wide to generate discussion about legal interpreting and to inform Deaf defendants and their attorneys about their options to challenge interpretations.
Thank you for reading this article and taking the issues into the community.
Tara and Nikki

shansen
Member
Hello Tara and Nichola~ Thank you so much for posting this! I work in legal settings regularly. Here are my thoughts: 1. Goodness…I might just not do police interpreting any more. 2. No, that is not a good solution. 3. Do I understand correctly that if Mr. Taylor had had an opportunity to review the transcript (English) created by going thru it line by line with an interpreter at a separate appointment, and agreed to the veracity of all statements, and signed that document agreeing to the contents as being accurate, that would have created an affidavit that could be… Read more »
Member
James Wiggins-Mallory

Shelly beautifully expressed!! Thank you!

shansen
Member

One more…sorry!
We need those cases that are occurring around the country compiled into an annual publication similar to the JOI (Journal of Interpreting)….ie: a Journal of Interpreting: Legal.

I want to know about those and rely on primarily the LIMS listserve for updates, but had not heard of this one so YES let’s do a better job of compiling and disseminating these cases for the interpreting community so we stay abreast of current legal issues.

How do we make that happen?

;o) SH CI/CT/SC:L/Ed:K-12 WA court certified

Member
Terri Hayes
Shelly, (hello again)… your points got me thinking re: #3… no – I dont think that just giving the Deaf person the opportunity to use another interpreter to “read” through what has been said by the first interpreter would work – because 1) there is no guarantee that the second interpreter would be able to deliver the message any more accurately back to the Deaf person than the first interpreter did into English. and 2) the Deaf person might not understand, even if they believe those “words” *seem* to represent what they said – they might not be able to… Read more »
shansen
Member
Hi Terri! Thanks for reply and your perspective as always!! Few quick thoughts: 1. I absolutely think we can “back translate” content to check for accuracy. In the scenario above, the fellow said “I didn’t actually hit her, I said “IF I was to hit someone, I’d immediately apologize” (paraphrased). We should be able to clarify a mistake like that. 2. Entrapment is a horrid word and not what the intention would be at all, any more than it is entrapment for a hearing person to re-read a statement taken down, verify the details and sign off. You and I… Read more »
Member
Terri Hayes
Shelly – If I had a nickel for every time a person whose second language is English (and many for whom English is their FIRST) – who has been asked to sign a verification that “this in print is what you said”.. who then returned later to say, “but I didn’t understand what this was – I didn’t understand the “reality” of it – I didn’t understand what it was for – I didn’t understand what it *meant*…”I didn’t understand”… (and they didnt – they really sincerely didn’t)… (and yet – they are now “stuck” with what they signed –… Read more »
shansen
Member

Hi! I fundamentally disagree. See my question below to Nikki and Tara. We’ll have to agree to disagree. People can be held accountable for their actions, and communication even through interpreters. Without that, we do not have a functional justice system. You might be arguing that…It is interesting that the topic of a written form of ASL is being discussed in other forums…another example of the ramifications of a lack of a written form of ASL. Have a great weekend ;o) SH

Member
Tara Potterveld
Hi Shelly, thank you for your observations and valuable contributions. That is a great idea of compiling legal cases and their impact on Deaf people and interpreters that we could easily access. Going back to your previous post, the appellate decision did not specify if Mr. Taylor was given an English translation of the hearing interpreter’s English. However, I assume that the proceedings interpreters interpreted the audiotape that the jury heard in real-time to Mr.Taylor. Many defendants do not have the language or education to be able to check whether their statement is accurate. A good defense attorney is valuable.… Read more »
shansen
Member
Hi Tara and Nikki~ Thanks for reply! Do you think reviewing the transcript of the interview prior to trial could have averted the misunderstandings and corrected the record/evidence/transcript prior to open court and thus remedied the problem of inaccurate testimony by the defendant? It sounds like the first time the defendant was aware of the errors was in court. Many defendants review their statements with their attorney outside of the courtroom to avoid this situation. This holds for all non-English speaking/reading/writing individuals who interact with our court system via interpreters, who take an oath to faithfully interpret accurately. I am… Read more »
Member
Tara Potterveld
Thank you, Shelly, for raising good questions. In our experience, whether a defense attorney meets with a defendant to go over police statements before a trial depends on a variety of factors. Nikki and I live and mostly work in Northern California. In one county where we work, the public defenders office is well funded enough to hire interpreters to interpret attorney/client meeting in the county jail or the office. In another county, the attorneys wait until day of court and use the court paid interpreters for attorney/client meetings. Privately hired attorneys and court appointed attorneys sometimes don’t hire interpreters… Read more »
shansen
Member

Hi! I am thinking in terms of what I would be recommending the next time I interpret for a police interrogation, with a team, with a videotape etc… Making a recommendation that the client/defendant/witness have an opportunity to review the transcript of this interview to verify the accuracy of the statements and avoid a challenge/appeal later that the interpreters made substantive errors. It is the same rationale I use for having a videotape in the first place.

Member
Tara Potterveld
Hi Shelly, Thank you for your thoughts. The Taylor police interview lasted for five hours. In order to go over the statement with the suspect, interpreters would need to come back another day. That is problematic in jurisdictions that limit how long a person can be held before arraignment. Ideally, the statement would be interpreted in the presence of a defense attorney, but that does not happen at most arraignments. Check out this article from the New York Times about plea deals. It is a fascinating look at the criminal justice system. http://www.nytimes.com/2016/07/10/magazine/how-a-2-roadside-drug-test-sends-innocent-people-to-jail.html We appreciate all the good discussion that… Read more »
Member
Andrea K Smith
Point of correction. There was no CDI present. The Deaf interpreter in this case is not certified. The hearing interpreter holds a NIC that was relatively recently acquired. I believe that speaking to the qualifications of the interpreters is rather important, especially when you consider the gravity of this decision. An implication not addressed in this article is related to business. Will interpreters involved in the forensic phase now be called as a matter of course to be cross-examined in court? If so, how does this impact our billing considerations? If I do a police interview and have an expectation… Read more »
Member
Brenda Adkinson

I, too, have pondered the “billing considerations.” Especially as I sit here holding my 11th subpoena. I’m on standby all day August 3rd and cannot take any assignments that day. I can’t bill the courts as a subpoenaed witness. It’s a new (not really new) frontier.
Definitely a substantial financial loss.

Member
Tara Potterveld

Wow, Brenda, 11 subpoenas. I looked you up on the RID website and was thrilled that you have your SC:L.

There was research published somewhere that only 1 out of 10 arrests leads to trial, so not every time we interpret for the police will we get subpoenaed.

Thanks for your comments.
Tara and Nikki

Member
Brenda Adkinson

Funny. If 1 out of 10 goes to trial, then I can attest that, so far, 10 out of 11 subpoenas have been merely decoration for the refrigerator.
I’ve yet to actually testify.

However, what’s important is that I feel confident and prepared to do so should that day actually arrive.

Member
Tara Potterveld

Hi Brenda,
Thank you for you observations. I once got subpoenaed because the court needed a proceedings interpreter. There is still work to be done.

We agree that education and these kind of discussions do make a difference.
Tara and Nikki

Member
Tara Potterveld
Hi Andrea, Thank you for clarifying the Deaf interpreter’s certification status. The appellate court ruling states that she is a “Certified Deaf Interpreter (CDI) who could not hear the questions.” People outside our field often confuse our credentials. Good questions on billing considerations. As freelance interpreters, we can set our own rates. If they are higher than the competition, then entities don’t have to hire us. But we worry that Deaf suspects will then have unqualified interpreters. Witnesses are not compensated for their time unless they are classified as expert witnesses. In the Taylor case, the interpreter was not in… Read more »
Member
Christina Vorreyer-Davis
Would it be wise and feasible to have several different interpreters (both CHI and CDI) to convey the deaf person’s statements via video and audio recorders to supply comparison and similarities? I am thinking—since there is a wide range of variety in interpreting ASL and English. There has to be a few similarities to verify what actual was being said. I am citing from this article, “Taylor testified that the interpreter did not render the appropriate English of a conditional statement; “He testified that he told the interpreters that, if he had touched anyone, it would have been an accident,… Read more »
Member
Tara Potterveld

Thank you, thank you, Christina. All valid points. Let’s all do more training within police academies and police stations as well as at defense attorney seminars. We would love to see more Deaf leadership in these areas.
Tara and Nikki
.

shansen
Member
Hi Christina! WA state now has guidelines on this which is so fantastic! It is so wonderful when your STATE has actual published lists of qualified interpreters and is supporting the effort statewide to have qualified interpreters in the courts. Thank you to all those people who have worked to get the standards we do have in various states in place. One thing that hasn’t been mentioned I don’t think…and will be unpopular…since the tone in this thread is often that the interpreters are not qualified/competent, but is is valid to also recognize that the communication of some individuals for… Read more »
kbrick
Member
There is much to applaud in the decision (such as the part that recognizes the translation process) and much to criticize or even be alarmed about (such as the part that disempowers the Deaf persons by establishing that the interpreters content are automatically theirs instead of the Deaf person). I’m further concerned by the fact that those who applaud the decision wholly are those who stand to benefit the most from the decision–the interpreters. Andrea correctly identified one element of this. I had asked that the National Association of the Deaf jump in to provide analysis from the Deaf perspective… Read more »
Member
Jackie Lughtfoot

Cert. was denied in Ye v USA on June 13 2016 FYI.

Member
Tara Potterveld

Kelby, you are a treasure. Your insight and observations are so beneficial to moving legal interpreting in the right direction.
Thank you,
Tara and Nikki

Member
Tara Potterveld

The Washington Post recently ran an article about the Taylor case. He plead guilty in exchange for time served, 5 years of supervised probation and he had to register as a sexual offender.

https://www.washingtonpost.com/local/plea-deal-ends-maryland-deaf-school-aides-sex-assault-case/2016/07/27/6aaa45b2-5448-11e6-b652-315ae5d4d4dd_story.html

Member
Angela Barefield

Wonderful article. I think it is great to hold the interpreter to a higher standard. Although it seems it would be very hard to go through an interrogation interpreters still have to be held accountable for their words. It may become hard to get an interpreter to do interrogations if they become fearful of being sued or subpoenaed.

Member
Tara Potterveld
Thank you for your comments, Angela. I agree that we have to be held to high standards. All interpreters make errors, or as Dennis Cokely calls them, “miscues.” If they are substantive, then bringing them to light is a good thing. We have to remind ourselves that it really is about the interpretation, not necessarily about us (although we always seek to improve). Someone once told me that you don’t need thick skin to do this job, you need a well-balanced life. In other words, we do our work and expect a subpoena. Thanks again for commenting. These issues are… Read more »

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