Post-Conviction Relief for Immigrants

Once a qualified interpreter has been found, counsel must maximize his or her usefulness.  If used in court during post-conviction proceedings, the interpreter should sit where s/he can hear all witnesses, the defendant can hear the interpreter, and no one’s back is facing the interpreter.

Counsel should furnish the interpreter with as much documentation as possible prior to trial, including indictments or complaints, expert reports and jury instructions, which are often the most difficult portions of a trial to translate. 

            When questioning a non-English speaking witness, counsel should speak to the witness directly, rather than asking the witness to speak to the interpreter.  Also, counsel should advise the defendant or other witness to speak clearly and wait for the interpreter to finish before responding. 

            To reduce the potential for errors, counsel should speak slowly and avoid compound questions.  Passive voice and double-negatives are often foreign concepts to non-English speakers.  Counsel must also be keenly aware of interpreter fatigue and request frequent breaks.  The task of courtroom simultaneous interpretation is extremely difficult and taxing.  If the trial is lengthy, two interpreters should work in shifts.  Finally, counsel should try to use the same interpreter(s) throughout the proceedings, including client meetings. 

            Interpretation errors occur frequently.  Some of the more common errors include: (1) switching first person to third person; (2) literally translating even though the meaning is lost in translation; (3) omission to translate everything due to fatigue or lack of memory; (4) distortion due to the interpreter’s failure to convey hesitation words, fillers or other characteristics of natural speech; (5) adding or deleting politeness markers; and (6) cleaning up street language used by the witness.  Counsel should attempt to record all translation so that it will become part of the record on appeal and not simply reflect the English questions and answers.