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Globalization has increased the number of individuals in criminal proceedings who are unable to understand the language of the courtroom, and as a result the number of court interpreters has also increased. But unsupervised interpreters can severely undermine the fairness of a criminal proceeding. In this innovative and methodological new study, Dingfelder Stone comprehensively examines the multitudes of mistakes made by interpreters, and explores the resultant legal and practical implications.

Whilst scholars of interpreting studies have researched the prevalence of interpreter error for decades, the effect of these mistakes on criminal proceedings has largely gone unanalyzed by legal scholars. Drawing upon both interpreting studies research and legal scholarship alike, this engaging and timely study analyzes the impact of court interpreters on the right to a fair trial under international law, which forms the minimum baseline standard for national systems.



1. Introduction

The increased movement of individuals across borders in the modern world has created a variety of urgent challenges for national legal systems. One such challenge arises from the growing number of courtroom participants in criminal court proceedings who are unable to speak or understand the native language of the courtroom. The traditional solution in such situations has generally been to employ a court interpreter to allow the foreign-language individual to communicate with the other courtroom participants, thus seemingly removing the linguistic barrier. Historically, court interpreters have been left to do their job with little supervision or oversight from the legal system. The addition of an unsupervised court interpreter into the otherwise well-regulated ecosystem of a criminal proceeding, however, can severely undermine the fairness of that proceeding. In short, interpreters routinely make mistakes. Interpreting studies scholars have for decades researched and discussed the multitude of errors and missteps that court interpreters consistently make in criminal settings. The effect of these mistakes on criminal proceedings, though, has largely gone unanalyzed by legal scholars. The purpose of this book is to correct this omission by analyzing the impact of court interpreters on the right to a fair trial under international law, which forms the minimum baseline standard for national systems.
John Henry Dingfelder Stone

2. The Right to an Interpreter

This Chapter focuses on the right to an interpreter under international law, since this allows for an introduction into the overall topic of interpreters in criminal proceedings. The Chapter sets out the circumstances that give rise to a right to have an interpreter appointed. This is shown to be problematic, since monolingual courtroom personnel are tasked with both evaluating the language competence of a foreign language participant and also assessing the professional competence of any potential court interpreters. Following upon this discussion, the difficulty of assessing competence generally is also examined, revealing that it is the adequacy of the eventual interpretation itself that is required by the right to an interpreter rather than the general competence of the interpreter herself. The Chapter further analyses the basic difficulty in assessing and enforcing competency standards at both the trial court and appellate level. A final conclusion reached is that the legal norms surrounding the right to an interpreter are still somewhat undeveloped. Given that the main purpose of an interpreter is to enable the fulfilment of the other Article 14 fair trial rights in proceedings involving foreign language participants, in order to understand the requirements of the right to an interpreter, it is necessary to understand what the other fair trial rights require of such an interpreter.
John Henry Dingfelder Stone

3. Courtroom Interpreting

This Chapter provides an overview of courtroom interpreting generally, making a concerted effort to clarify and demystify the interpreting process for both legal scholars and practitioners alike. The four different interpreting techniques commonly utilized in a courtroom setting are discussed, as are the different roles that court interpreters are frequently expected (inappropriately) to play. The Chapter then examines the standard of accuracy required from court interpreters, focusing on the perpetual debate between verbatim (word-for-word) translations and pragmatic (meaning-for-meaning) translations. The conclusion is reached that neither standard is sufficiently accurate on its own to create an adequate interpretation. Next, a theoretical model of interpreting is presented based upon Gile’s Effort Model. Gile posits that interpreters continuously work at the edge of their cognitive ability and therefore make errors not necessarily because they lack the required linguistic abilities or information, but because their mental capacity at any particular moment may be insufficient to process the information or utilize the abilities they do possess. In elaborating on this theory, the Chapter is able to emphasize not only the inevitability that interpreting errors will be made, but also to highlight the environmental or systematic issues that can lead to an increase in such mistakes.
John Henry Dingfelder Stone

4. The Right to a Fair Trial

This Chapter presents a detailed analysis of those fair trial rights under international law that are most likely affected by the involvement of court interpreters: the right of equality before the court; the right to adversarial proceedings; the right to be informed of the charge; the right to adequate time and facilities to prepare a defense; the right to be tried without undue delay; the right to be present at one’s own trial; the right to counsel; the right to examine witnesses; and the right to appeal. In addition, the right to overall fairness of the proceedings is also evaluated. Although the discussions surrounding each right are limited to only those specific aspects that are affected by court interpreters, the Chapter shows that the affected areas actually encompass a substantial portion of the Article 14 rights. Elaborating upon these rights allows not only for a fuller understanding of how they may be undermined by interpreters, but also helps further define the contours of the right to an interpreter as examined in Chap. 2.
John Henry Dingfelder Stone

5. Interpreter Error and Its Implications

This Chapter catalogues a vast array of interpreter errors that are known to exist, as well as their potential implications with respect to the various fair trial rights. This discussion is divided into two sections: those errors related to the interpreters themselves and their conscious choices (interpreter-based problems) and those mistakes that arise mainly from the inherent complexity and difficulty of the interpreting process (language-based problems). Looking at interpreter-based problems reveals a number of issues (such as stepping outside of the interpreter’s neutral role) that occur at problematic levels of frequency. Likewise, examining language-based problems associated with content (such as difficulties with legal language and the general lack of linguistic equivalents) reveals a similar trend. Finally, an evaluation of those language-based problems involving speech style choices (such as register, politeness, and hedges) shows that evidentiary fact-finders base their assessments of witness credibility and believability on the interpreter’s style of speech (as opposed to the style of speech used by the witness in the original language). Since studies have shown that speech style has an enormous impact on the actual acceptance of witness testimony, this is a troubling finding. After the examination of highlighted interpreter errors, an in-depth discussion of the potential impact of these specific issues on the various fair trial rights occurs.
John Henry Dingfelder Stone

6. Systemic Issues

This Chapter explores a variety of systemic issues, such as fatigue and poor working conditions, that negatively affect court interpreter performance. Furthermore, the book surveys the general practices used by criminal justice systems when appointing court interpreters, as well as the economic pressures involved in the court interpreting market, and comes to the conclusion that the overall level of competence exhibited by most appointed interpreters is dangerously low. Building upon Gile’s Effort Model, the Chapter theorizes that many of the interpreting errors previously discussed in the work may arise from a combination of systemic and environmental issues negatively impacting the cognitive abilities of already limited interpreters.
John Henry Dingfelder Stone

7. Analysis

Pulling together each of the different threads presented in the preceding Chapters, this Chapter proceeds to examine the extent to which the identified interpreter errors may actually undermine the right to a fair trial in criminal proceedings. For this discussion, the fair trial rights are broken down into three groups: those related to the production of evidence (such as the right to examine witnesses); those related to the understanding of evidence (such as the right to be present); and those generally unrelated to evidence (such as the right to appeal). Throughout the evaluation of these categories, the legal implications of interpreter error are examined by reference to international jurisprudence directly applicable to the issues, as well as by drawing analogies between cases in related areas of law. Given the findings from previous Chapters that a substantial variety of interpreter errors are not only inherent in the system, but also common and frequent occurrences, it is asserted that the impact of court interpreters on specific individual fair trial rights is quite significant indeed. Specifically, it is concluded that court interpreters, where they are tasked with interpreting for a foreign language witness, considerably impede the accurate production of evidence, which is a fundamental aspect of numerous fair trial rights. In addition, court interpreters are also found to appreciably undermine the ability of foreign language defendants to effectively participate in their proceedings, which is likewise a foundational part of the right to a fair trial. Those fair trial rights unrelated to evidence are also shown to be endangered. Ultimately, the Chapter concludes that, even where individual fair trial rights may not be infringed, the sheer volume of likely interpreter error in any given case put the overall fairness of interpreted criminal proceedings at risk.
John Henry Dingfelder Stone

8. Conclusions and Proposals

The final Chapter sets out several detailed proposals to revise the usage of court interpreters in criminal proceedings in order to minimize the risks to a fair trial. Among these suggestions is the employment of better interpreters in criminal proceedings. While this may sound obvious, it actually involves the detailed exploration of several different concepts, such as mandatory certification requirements, the usage of remote video interpreting, and the establishment of training programs specifically tailored to court interpretation (as opposed to general interpretation techniques). Other proposals examined at length in the Chapter are the improvement of oversight procedures and the improved education of other courtroom actors concerning court interpretation.
John Henry Dingfelder Stone


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