Criminal Defense of Immigrants

(A)  Simultaneous Interpretation.  An interpreter performing simultaneous interpretation is speaking in the target language at the same time the speaker is speaking in the source language. [12]  The listener must tune out the source language, while listening to the target language, which can be very difficult if the listener understands partially what the speaker is saying in the source language.  Simultaneous interpretation is also very difficult for the interpreter, who is listening to all the speaker’s words and instantaneously interpreting them into a different language, often while simultaneously listening to the next group of words, throughout the court proceeding.  Simultaneous interpretation is a very highly skilled task.

                In performing simultaneous interpretation, the interpreter must perform eight simultaneous cognitive tasks: listening, understanding, abstracting the message from words and word order, storing the ideas, searching for the conceptual and semantic matches, reconstructing the message in the target language, speaking in the target language and listening for the next chunk of language to process, and monitoring the interpreter’s own output.[13]  This difficulty is illustrated by the very low pass rates of applicants taking court interpreter certification examinations in California (3.9%), New Jersey (8.0%), Washington (12.5%), and the federal courts (3.6%).[14]  Even practicing interpreters in languages other than Spanish have difficulty passing an Interpreting Skills Test, since pass rates range from a low of 4% for Laotian and Haitian Creole to a high of 16% for Portuguese.[15]

                Generally, courts require the defendant be provided with simultaneous interpretation of the testimony of witnesses and all other court proceedings so s/he can understand exactly what is going on and be fully present to assist counsel in the proceedings.[16]   Courts have held the right to an interpreter includes a right to simultaneous interpretation throughout the proceedings.[17]

                        In simultaneous or consecutive interpretation, the interpreter must not paraphrase or change the meaning of testimony or any other words that are spoken.[18]  Many interpreters carry listening devices for use during simultaneous interpretation.[19]  Simultaneous interpretation is extremely tiring.  After some time performing this arduous task, it is difficult for any interpreter to maintain the very high degree of attention required, and frequent breaks may be necessary for the interpreter to recover.  In the alternative, two or more interpreters may be required so they can switch off for each other to maintain continuous simultaneous interpretation during lengthy court proceedings, although this involves some sacrifice of continuity and thus of the accuracy of the interpretation.

[12] See United States v. Sanchez, 928 F.2d 1450, 1455 (6th Cir. 1991); Bennett, 848 F.2d at 1140 n.7; Khamfeuang Thongvanh, 494 N.W.2d at 681.

[13] Even this summary oversimplifies more scholarly models of this difficult group of mental processes.  E.g., R. Gonzalez, V. Vasquez & H. Mikkelson, Fundamentals of Court Interpretation: Theory, Policy and Practice 319-321 (1991) (Figures 3-5). 

[14] William E. Hewitt & Robert Joe Lee, Behind the Language Barrier 5, Table 1 (unpublished ms. 2006), citing as sources the University of Arizona; Cooperative Personnel Services, State of California; Administrative Office of the New Jersey Courts; and the Office of the Administrator for the Courts, Washington. 

[15]  Ibid., p. 5, Table 2.

[16] See 28 U.S.C. § 1827(k); United States v. Huang, 960 F.2d 1128, 1135 (2d Cir. 1992); United States v. Gomez, 908 F.2d 809, 811 (11th Cir. 1990); United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir. 1990); United States v. Lim, 794 F.2d 469, 471 (9th Cir.), cert. denied, 479 U.S. 937 (1986) (criminal defendant who relies principally upon a language other than English has a statutory right to a court-appointed interpreter when his comprehension of the proceedings or ability to communicate with counsel is impaired) (per curiam); United States v. Urena, 834 F. Supp. 1282, 1286 (D. Kan. 1993); Giraldo-Rincon v. Dugger, 707 F. Supp. 504, 506 (M.D. Fla. 1989); People v. Mata Aguilar, 677 P.2d 1198, 1201, 1202 n.7 (Cal. 1984) (en banc); People v. Avila, 797 P.2d 804, 806 (Colo. Ct. App. 1990).  But see El Rescate v. EOIR, 941 F.2d 950 (9th Cir. 1991) (lack of simultaneous interpretation for INS proceeding is not denial of “reasonable opportunity to be present”)

[17] See Giraldo-Rincon, 707 F. Supp. at 506; People v. Mata Aguilar, 677 P.2d 1198, 1201, 1202 n.7 (Cal. 1984) (en banc); People v. Avila, 797 P.2d 804, 806 (Colo. Ct. App. 1990); State v. Munoz, 659 A.2d 683, 696 (Conn. 1995); State v. Roman, 616 A.2d 266, 270 (Conn. 1992); Martinez Chavez v. State, 534 N.E.2d 731, 736 (Ind. 1989); Molina v. State, 621 N.E.2d 1137, 1139-40 (Ind. Ct. App. 1993); People v. Cunningham, 546 N.W.2d 715, 664-65 (Mich. Ct. App. 1996); Mendiola v. State, 924 S.W.2d 157, 163 (Tex. App. 1995).

[18] See United States v. Gomez, 908 F.2d 809, 811 (11th Cir. 1990); People v. Cunningham, 546 N.W.2d 715, 716 (Mich. Ct. App. 1996).

[19] These devices are small-battery operated portable amplifiers. The speaker of the target language wears earphones, and the interpreter speaks softly into a small microphone. The device amplifies the interpreter’s voice, and the party can hear clearly. The earphones help block out ambient noise, aiding the party’s concentration.