ACCESS TO THE COURTS: LANGUAGE ACCESS AND THE ADA Honorable Judge Sergio Gutierrez Andrea Patterson, Human Resources Director Sandra Barrios, Language Access Coordinator October 29, 2015 in Boise, Idaho at IICM Overview Part 1: Language Access Meaningful access Interpreter vs. Bilingual employees How and when to access services? Using remote services Part 2: Americans with Disabilities Act Effective Communication Service Animals Framework for Access Proposed Rule Proposed Forms Introduction: Legal Requirements Governing Access to the Courts Access to the Courts Legal Requirements 4 Legal Requirements Governing Access to the Courts Title VI of the Civil Rights Act of 1964 Idaho Code Idaho Court Administrative Rule 52 State and Federal Constitutional Due Process Rights Americans with Disabilities Act Rehabilitation Act Title VI of the Civil Rights Act of 1964 Prohibits recipients of federal funding from national origin discrimination (i.e., language discrimination). Requires competent interpretation for LEP individuals in all case types Prohibits charging the LEP for language services (including ancillary services). Coverage extends to all aspects of the courts, including services outside the courtroom. Requires translation of vital written materials. Denial of access may lead to complaints with the Department of Justice Title II of the Americans with Disabilities Act The Idaho Courts must provide people with disabilities equal access to and full participation in all court programs, services, and activities. Protects qualified individuals: Including litigants, attorneys, victims, witnesses, judges, jurors, and spectators They must be provided access to: All programs, services, and activities of the court system, including the clerks office. Requirements to avoid discrimination Reasonable modifications in policies, practices, or procedures Unless it would result in a fundamental alteration in the nature of a service, program, or activity, or in undue financial and administrative burdens. Denial of access May lead to a lawsuit or a complaint filed with the Department of Justice I.C.A.R 52 Interpreters are assigned for criminal & civil cases Assistance in court proceedings & outside the courtroom Priority of appointment: 1)Master Level or Certified Interpreter 2)Conditionally Approved Interpreter 3)Registered Interpreter Interpreter oath Removal from a Case Payment by District Court fund Idaho State Law Idaho Appointment of an interpreter for civil and criminal proceeding Any witness or party who does not understand or speak the English language Payment for interpreter services by the district court fund. Linguistic assistance to non-English proficient, deaf or hard of hearing individuals Removing barriers allowing effective participation Not charging for services provided Allowing for meaningful access and effective communication COURTS OBLIGATIONS INCLUDE Interpreter vs. bilingual employee Different degrees of bilingualism. Sometimes an individuals degree of bilingualism changes based on the situation Individual characteristic; it is not collective in nature, and no group of people is completely bilingual just because Ability to speak two languages or dialects Mastery of English Mastery of Foreign Language Ability to Work Under Pressure, Stressful Environment Understanding of Legal Terms Modes of Interpreting Understanding of Ethics & Scope Court Interpreter Minimum Job Requirements: To provide a Legal Equivalent: A linguistically true and appropriate interpretation of the statements spoken or read in court from one language into the other. To act as Language Conduit: To render a complete and accurate interpretation or translation, without altering, omitting, or adding anything to what is stated or written, and without explanation. To allow for the non-English individual to be in equal footing: To enable the listener (e.g. judge or jury) to react in the same manner to a non-English speaker as they do to an English speaker. To provide verbatim manner interpretation: Maintaining form and content of all linguistic elements, including pauses, hedges, self corrections, hesitations and emotions. Court Interpreters Role & Ethics Interpreters convey meaning not word-for- word interpretation He dropped the ball!! Do not hold your breath on this one. That defendant is truly pushing the envelop! Mastery of English Sight Translation Consecutive Simultaneous 3 Modes of Interpreting Live exercise of modes 15 Mastery of the Foreign Language Guagua Drogas Working with the non-English speaking population Should you use family members or friends as Interpreters? Lack of understanding of the process, or important concepts Lack of Language Proficiency (English / foreign language) Trying to help by suppressing or adding information Conflict of interest Too emotionally involved Determine language. Use I speak Card Contact language provider (phone) Provide the same level of service than to an English speaker Do not make any derogatory comments or disparaging remarks Do not ask the person to come back with an English speaker How to communicate with less- English-proficient customers? Avoid common misconceptions Do not make assumptions Not everyone needs / knows ASL ASL is not signed English-, it is foreign language (e.g., French, Russian) Do not assume the person can read or write Be aware of limitations with reading / writing Have a written request for accommodations Document interactions along the way Deaf & Hard of Hearing Public Avoid using idioms, slang and legalese Talking too fast or too slow will impact the efficiency of the interpreting process Dont use complex or artificially long sentences Address the party in the first person The interpreter is like a magic telephone Monitor your voice projection Try to minimize multiple conversations Best Practices Outside the Courtroom Interpreter services v. bilingual services Bilingual county employees Language proficiency Not an interpreter Remote Interpreting Over the telephone Video Remote Interpreting Translation v. Interpretation Brief and update the interpreter Introduce yourself and state the goal of the encounter. Position the device so the interpreter and the individual can see each other. Communicating with the customer Retain control of the call. The interpreter will assist with communication, but you drive the conversation. Use direct speech (first person) at all times. How are your today? Speak in short sentences, using 3-5 sentence segments and pause at the end of a thought. Avoid jargon, slang and complicated technical terminology If you sense that the customer does not understand, try to rephrase or explain in a different manner or repeat what you have heard. Remember, whatever the interpreter hears will be interpreted. Avoid private conversations. Closing the conversation Check with the customer for understanding. Do you know when you have to come back? Document that you worked with an interpreter, include the interpreter name and ID #. Once you have the interpreter on the line or video Professional Interpreter Will interpret in first person. Will interpret the utterance at the same level as the original message. Will maintain everything confidential. Will take notes and destroy them. However, they will not: Explain a term, or an expression. Provide any type of opinion or advise. Engage in extemporary conversations. ADA & Access to the Courts: Effective Communication Key area of ADA compliance We must ensure that our communications with people who have hearing, vision, or speech difficulties are as effective as our communications with others. The goal is to find a practical solution that fits the circumstances, taking into account the following: Nature, length, and complexity of the communication AND The persons preferred method(s) of communication. We bear the cost of ensuring effective communications by providing auxiliary aids and services. ADA & Access to the Courts: Auxiliary Aids and Services We must provide auxiliary aids and services that promote effective communications, which include: Qualified sign language interpreters (in-person or video remote interpreting [VRI]), Note takers, Real-time computer-aided transcription services (CART), Written materials or the exchange of written notes, Voice, text, and video-based telecommunications products and systems (TTY), Assistive Listening Devices and Systems (ALDs), Telephones compatible with hearing aids or with handset amplifiers, Braille materials and displays; large print materials, and Screen reader or magnification software. Must give primary consideration to the requested aid or service. ADA & Access to the Courts: Effective Communication Primary consideration must be given to the type of auxiliary aid or service requested by the person with the disability unless: Another equally effective means of communication is available, The aid or service would fundamentally alter the nature of the program, service, or activity, OR The aid or service requested would result in an undue financial and administrative burden. If considering whether there is a fundamental alteration or undue burden, that decision must be made by a high level official and accompanied by a written statement for the reasons for reaching that conclusion. ADA & Access to the Courts: Service Animals Another area of ADA compliance Deputy clerks on front line of interaction Two Permissible Questions relating to Service Animals: 1. Is the animal required because of a disability? 2.What work or task has the animal been trained to perform? Only ask if not obvious what service animal is doing (i.e., vision impairment assistance) Service Animal must be under control. ADA & Access to the Courts: Excluding Service Animals When can a service animal be excluded? If not under the control of the handler, If not housebroken, OR If poses a direct threat to the health or safety of others. If excluded for any of the above reasons, must offer the services to the person without the animal present. Direct threat requires case-by-case decision of That particular animals actual behavior or history of behavior ADA & Access to the Courts: FAQs re Service Animals But what about someone who is faking and brings in their dog as company? What about me? Im allergic to dander! Im nervous about that pit bull being used as a service animals. Can I ask them to leave? I was attacked by a pit bull as a child and have PTSD and this pit bull service animal is triggering my PTSD. What about that dog who wont stop barking? And just who is going to clean up that mess? What is that little pony doing here, anyway? ADA & Access to the Courts: Process to Request Disability Accommodation No need to do an accommodation request if requested auxiliary aid or service is readily available. TCA is the ADA Coordinator for court services, programs, and activities for each district. New framework being developed to formalize ADA process across the Idaho Courts statewide. Court Rule Request Form Grievance Process