Lost in Translation Lost in Translation

Are We Hearing What We Need to Are We Hearing What We Need to Hear?Hear?

Interpreters and Limited English Proficient Interpreters and Limited English Proficient Participants Participants

Judge Chris CraftJudge Chris Craft

Shelby County Criminal CourtShelby County Criminal Court

Itzel NealItzel Neal

Tennessee Certified Spanish Court InterpreterTennessee Certified Spanish Court Interpreter

Mary Rose ZingaleMary Rose Zingale

Court Services DirectorCourt Services Director

Administrative Office of the CourtsAdministrative Office of the Courts

Supreme Court Rules 41 and Supreme Court Rules 41 and 4242

Rule 41: It is essential that the … Rule 41: It is essential that the … communication barrier be removed, as communication barrier be removed, as far as possible, so that these persons are far as possible, so that these persons are placed in the same position as similarly placed in the same position as similarly situated persons for whom there is no situated persons for whom there is no such barrier. such barrier.

Rule 42: This rule is promulgated to Rule 42: This rule is promulgated to assist the courts in this state in providing assist the courts in this state in providing equal access to the courts to participants equal access to the courts to participants who have a limited ability to speak or who have a limited ability to speak or understand the English language.understand the English language.

  

The Role of an The Role of an InterpreterInterpreter

To render a complete and accurate To render a complete and accurate interpretation or translation without interpretation or translation without altering, omitting, or adding anything altering, omitting, or adding anything to what is stated or written, and to what is stated or written, and without explanation. without explanation.

““Interpret” in this context does not Interpret” in this context does not mean explain. It means providing an mean explain. It means providing an equivalent meaning in the target equivalent meaning in the target language as the one stated in the language as the one stated in the source language. source language.

What kind of skills does it What kind of skills does it take to become a court take to become a court

interpreter?interpreter?

Being bilingual is Being bilingual is not not sufficient. sufficient. The level of expertise required The level of expertise required for court interpreting is much for court interpreting is much greater than that required in greater than that required in everyday conversation.everyday conversation.

What kind of skills does it What kind of skills does it take to become a court take to become a court

interpreter?interpreter?Interpreter must be TRI – Lingual. Must know: Interpreter must be TRI – Lingual. Must know:

EnglishEnglish

Target LanguageTarget Language

Legal Language Legal Language

AND must have AND must have

Excellent mental skills – must be able to Excellent mental skills – must be able to accurately convert the source language accurately convert the source language into the target language and vice versa, into the target language and vice versa, with only an instant to choose the with only an instant to choose the equivalent wordsequivalent words..

ExercisesExercises

VIDEO VINGNETTES:VIDEO VINGNETTES:Inadvertently making Inadvertently making

Interpreters’ Jobs Interpreters’ Jobs DifficultDifficult

Appointing an Appointing an InterpreterInterpreter

Appointing an interpreter is a matter of judicial discretion. The court shall, pursuant to SCR 42, appoint an interpreter according to the following preferences:

(1) Certified(2) Registered(3) Non-Credentialed

Interpreter Video VignettesInterpreter Video Vignettes

CertifiedCertified vs. vs. RegistereRegistered

Have passed the Have passed the three-part oral three-part oral exam including exam including sight, sight, consecutive, and consecutive, and simultaneous simultaneous translation.translation.

Have passed the Have passed the oral proficiency oral proficiency conversational conversational telephone telephone interview with interview with score of score of Superior.Superior.

Have Have notnot passed passed all three parts of all three parts of the oral exam.the oral exam.

RegisteredRegistered vs. vs. Non-Non-CredentialedCredentialed

Have passed the Have passed the oral proficiency oral proficiency conversational conversational telephone telephone interview with interview with score of Superior, score of Superior, BUTBUT

Have Have notnot passed passed all three parts of all three parts of the oral exam.the oral exam.

Have not taken or Have not taken or passed the oral passed the oral proficiency proficiency interview.interview.

Have not taken or Have not taken or passed the passed the written exam.written exam.

May not have May not have completed the completed the ethics and skill ethics and skill building building workshop.workshop.

When to appoint a non-When to appoint a non-credentialed interpretercredentialed interpreter

The court may appoint an The court may appoint an interpreter of lesser preference interpreter of lesser preference (i.e., registered instead of (i.e., registered instead of certified or non- credentialed certified or non- credentialed instead of registered) instead of registered) only only upon a findingupon a finding that diligent, that diligent, good faith efforts to obtain the good faith efforts to obtain the certified or registered certified or registered interpreter, as the case may interpreter, as the case may be, have been made and none be, have been made and none has been found to be has been found to be reasonably available.reasonably available.

When to appoint a non-When to appoint a non-credentialed interpretcredentialed interpreter

A non-credentialed interpreter A non-credentialed interpreter may be appointed only after may be appointed only after the court has evaluated the the court has evaluated the totality of the circumstances totality of the circumstances including the gravity of the including the gravity of the judicial proceeding and the judicial proceeding and the potential penalty or potential penalty or consequence involvedconsequence involved.

Before appointing a non-Before appointing a non-credentialed interpreter, the court credentialed interpreter, the court shall make the following findings:shall make the following findings:

(i) that the proposed interpreter (i) that the proposed interpreter appears to have adequate language appears to have adequate language skills, knowledge of interpreting skills, knowledge of interpreting techniques, familiarity with techniques, familiarity with interpreting in a court setting; andinterpreting in a court setting; and

(ii) that the proposed interpreter (ii) that the proposed interpreter has read, understands, and will has read, understands, and will abide by the Rules of Ethics for abide by the Rules of Ethics for Spoken Foreign Language Spoken Foreign Language Interpreters in Tennessee Courts.Interpreters in Tennessee Courts.

Before appointing a non-Before appointing a non-credentialed interpreter, the court credentialed interpreter, the court shall make the following findings:shall make the following findings:

cont.cont.

(f) A summary of the efforts (f) A summary of the efforts made to obtain a certified or made to obtain a certified or registered interpreter and to registered interpreter and to determine the capabilities of the determine the capabilities of the proposed non-credentialed proposed non-credentialed interpreter shall be made in interpreter shall be made in open court.open court.

UnacceptableUnacceptable examples for examples for use of non-credentialed use of non-credentialed

interpreterinterpreter Finding someone who works across Finding someone who works across

the street at the Mexican restaurantthe street at the Mexican restaurant Bailiff, probation officer, party’s Bailiff, probation officer, party’s

attorneyattorney Relatives or friends of the defendantRelatives or friends of the defendant Someone who volunteers at the Someone who volunteers at the

courthouse and speaks Spanish courthouse and speaks Spanish When non-credentialed When non-credentialed

interpreters are used, there is a interpreters are used, there is a high possibility of high possibility of

misinterpretation that can misinterpretation that can directlydirectly affect the outcome of a

case.

When to Appoint When to Appoint MultipleMultiple InterpretersInterpreters

For legal proceedings lasting more than For legal proceedings lasting more than two (2) hours.two (2) hours.

A team of two interpreters should be A team of two interpreters should be designated to ensure accuracy and designated to ensure accuracy and completeness of the record by allowing completeness of the record by allowing interpreters to alternate work and rest interpreters to alternate work and rest in short shifts for proceedings lasting in short shifts for proceedings lasting more than two (2) hours.more than two (2) hours.

Responsibility for Obtaining Responsibility for Obtaining an Interpreteran Interpreter

Protocol should be established with the clerk’s office, Protocol should be established with the clerk’s office, secretary, attorney, etc.secretary, attorney, etc. for both civil and criminal casesfor both civil and criminal cases

Clerk’s Office Attorney Secretary

Interpreter Photo ID Interpreter Photo ID CardsCards

The Administrative Office of the Courts The Administrative Office of the Courts distributes photo identification cards to distributes photo identification cards to all state certified and registered all state certified and registered interpreters. A court can determine an interpreters. A court can determine an interpreter’s credentialing status by interpreter’s credentialing status by viewing this card, which differentiates viewing this card, which differentiates between registered and certified between registered and certified interpreters, and by consulting the interpreters, and by consulting the credentialed interpreter roster, which credentialed interpreter roster, which can be found on the AOC’s website (can be found on the AOC’s website (www.tncourts.gov ). ).

Simultaneous Interpreter Simultaneous Interpreter EquipmentEquipment

Each judicial district Each judicial district has been issued has been issued simultaneous simultaneous interpreter interpreter equipment.equipment.

******If you cannot If you cannot locate the equipment locate the equipment in your district, in your district, please check with all please check with all judges in the district, judges in the district, or contact Mary Rose or contact Mary Rose Zingale at the Zingale at the AOC.AOC.******

Rules that Govern the Appointment, Rules that Govern the Appointment, Credentialing, and Compensation of Credentialing, and Compensation of

InterpretersInterpreters

Tenn. S. Ct. Rules 41 and 42Tenn. S. Ct. Rules 41 and 42Tenn. R. Evid. 604Tenn. R. Evid. 604Tenn. Code Ann. § 16-3-813 Tenn. Code Ann. § 16-3-813

Judicial “Bench Cards”Judicial “Bench Cards”

AOC has produced “Bench AOC has produced “Bench Cards” for judges. Cards” for judges.

Can be found on Interpreter Can be found on Interpreter Page of AOC website: Page of AOC website: http://www.tncourts.gov/sites/default/files/docs/judges_bench_card_8-2013.pdf

Current Funding for Interpreter Costs Current Funding for Interpreter Costs for Court Hearingsfor Court Hearings

With the full support of the Supreme Court , the AOC With the full support of the Supreme Court , the AOC requested and Governor Haslam included in the 2012-requested and Governor Haslam included in the 2012-2013 AOC budget an additional $2 million for the costs 2013 AOC budget an additional $2 million for the costs of spoken language interpreters for court hearings . of spoken language interpreters for court hearings . This was ultimately approved by the Tennessee General This was ultimately approved by the Tennessee General Assembly and funding became available July 1, 2012.Assembly and funding became available July 1, 2012.

This funding allows for payment of interpreter costs in This funding allows for payment of interpreter costs in cases other than Rule 13 cases and gives a rare and new cases other than Rule 13 cases and gives a rare and new opportunity for the courts to provide persons with more opportunity for the courts to provide persons with more meaningful access to court hearings; to enable judges meaningful access to court hearings; to enable judges to better communicate with parties; and to enable LEP to better communicate with parties; and to enable LEP persons to more fully participate in court proceedings.persons to more fully participate in court proceedings.

Payment of Interpreter Payment of Interpreter CostsCosts

AOC will pay interpreter costs for AOC will pay interpreter costs for allall in-court in-court hearings hearings in in allall CIVIL OR CRIMINAL CIVIL OR CRIMINAL cases in:cases in: Juvenile CourtsJuvenile Courts General Sessions CourtsGeneral Sessions Courts Trial CourtsTrial Courts Appellate CourtsAppellate Courts

REGARDLESS OF INDIGENCY of the parties REGARDLESS OF INDIGENCY of the parties and ONLY if there is an appointment and ONLY if there is an appointment order.order.

Payment of Interpreter Costs in Rule 13 Payment of Interpreter Costs in Rule 13 defined cases where the party(ies) is defined cases where the party(ies) is

indigentindigentAOC will process interpreter invoices for:AOC will process interpreter invoices for:

(i) All court hearings;(i) All court hearings;

(ii) Pre-trial conferences between defendants and (ii) Pre-trial conferences between defendants and district attorneys in order to relay a plea offer district attorneys in order to relay a plea offer immediately prior to a court appearance or to immediately prior to a court appearance or to discuss a continuance;discuss a continuance;

(iii) Communication between client and state funded (iii) Communication between client and state funded counsel appointed pursuant to Supreme Court counsel appointed pursuant to Supreme Court Rule 13; and communication between client, state Rule 13; and communication between client, state funded counsel and others for the purpose of funded counsel and others for the purpose of gathering background information, investigation, gathering background information, investigation, trial preparations, and witness interviews.trial preparations, and witness interviews.

Interpreters for Victims Interpreters for Victims of Crimeof Crime

Rule 42 7)(h)(4)Rule 42 7)(h)(4)

Pursuant to Article 1, Section 35 of the Pursuant to Article 1, Section 35 of the Tennessee Constitution, interpreter Tennessee Constitution, interpreter costs will be paid pursuant to Rule 42 costs will be paid pursuant to Rule 42 for services to victim(s) of crime for services to victim(s) of crime during court proceedingsduring court proceedings in which the in which the victim(s), or in the case of a homicide, victim(s), or in the case of a homicide, the next-of-kin, are present.the next-of-kin, are present.

Interpreter Interpreter Compensation for the Compensation for the

Spanish LanguageSpanish LanguageRule 42 Section 7(a):Rule 42 Section 7(a):

Rates of Services for Rates of Services for interpretation of Spanish interpretation of Spanish shall not shall not exceedexceed::

$50 per hour Certified;$50 per hour Certified; $40 per hour Registered;$40 per hour Registered; $25 per hour Non-Credentialed$25 per hour Non-Credentialed

Rule 42 Section 7(a):Rule 42 Section 7(a):

Compensation rates for services provided by spoken Compensation rates for services provided by spoken foreign language interpreters for languages other foreign language interpreters for languages other

than Spanish than Spanish shall not exceedshall not exceed $75 per hour. $75 per hour.

**If the court finds that these maximum rates are **If the court finds that these maximum rates are inadequate to secure the services of a qualified inadequate to secure the services of a qualified interpreter in a language other than Spanish, the interpreter in a language other than Spanish, the court shall make written findings regarding such court shall make written findings regarding such inadequacy and determine a reasonable maximum inadequacy and determine a reasonable maximum rate for a qualified interpreter. rate for a qualified interpreter.

Interpreter Compensation for Interpreter Compensation for Languages other than SpanisLanguages other than Spanish h

Maximum Daily Rates for Maximum Daily Rates for Interpreters Regardless Interpreters Regardless

of Languageof Language

Rule 42 Section 7 (a):Rule 42 Section 7 (a):

MaximumMaximum rates shall not exceed: rates shall not exceed: $500 per day Certified;$500 per day Certified; $400 per day Registered;$400 per day Registered; $250 per day Non-Credentialed$250 per day Non-Credentialed

AppointmentAppointment Orders Orders

Sample appointment orders Sample appointment orders include one for Rule 13 cases include one for Rule 13 cases (indigent) and one for all other (indigent) and one for all other cases (civil and non-indigent cases (civil and non-indigent Rule 13 type cases). Rule 13 type cases).

• Sample orders can be found at: Sample orders can be found at: http://www.tncourts.gov/programs/court-interpreters/resources-interpreters

Invoice Invoice Forms/SubmissionForms/Submission

Effective July 1, 2013, no paper Effective July 1, 2013, no paper invoices will be accepted. All invoices will be accepted. All invoices must be submitted invoices must be submitted

online.online.

If the claim is over $200 the judge If the claim is over $200 the judge will have to approve it online will have to approve it online prior to the AOC processing the prior to the AOC processing the invoice. invoice.

Contracting with Contracting with Counties for Interpreter Counties for Interpreter

ServicesServices Counties may wish to utilize credentialed Counties may wish to utilize credentialed

interpreters on a full-time or part-time basis interpreters on a full-time or part-time basis with reimbursement for those services from with reimbursement for those services from the AOC. The rate of compensation shall not the AOC. The rate of compensation shall not exceed, under any circumstances, the rates exceed, under any circumstances, the rates provided for in this rule. Counties wishing provided for in this rule. Counties wishing to be reimbursed for these expenses shall to be reimbursed for these expenses shall contact the AOC, which will determine in contact the AOC, which will determine in what amounts and by what method said what amounts and by what method said reimbursement shall be made. Rule 42 (7)reimbursement shall be made. Rule 42 (7)(g)(g)

To assist with court dockets and the efficient To assist with court dockets and the efficient and economic use of the limited interpreter and economic use of the limited interpreter

resources:resources: 1.1. Create an LEP docket. Create an LEP docket.

2.2. Schedule interpreters in the most economical way – if Schedule interpreters in the most economical way – if paid for a two hour minimum on a criminal indigent paid for a two hour minimum on a criminal indigent docket, it would be a best practice for judges to ask the docket, it would be a best practice for judges to ask the interpreter to assist other courts with interpreter issues interpreter to assist other courts with interpreter issues if the interpreter has not actually interpreted for the two if the interpreter has not actually interpreted for the two hour minimum.hour minimum.

3.3. Court staff and administrators are generally the first to Court staff and administrators are generally the first to interact with the public. Signs and informational packets interact with the public. Signs and informational packets regarding right to an interpreter and general navigation regarding right to an interpreter and general navigation information about the courthouse can be created and information about the courthouse can be created and posted. The judges can help create these resources. posted. The judges can help create these resources.

Title VI of the Civil Rights Act Title VI of the Civil Rights Act of 1964of 1964

Section 601 of Title VI of the Civil Rights Act of 1964, 42 Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, (hereinafter Title VI) requires courts U.S.C. 2000d, (hereinafter Title VI) requires courts

receiving federal financial assistance provide meaningful receiving federal financial assistance provide meaningful access for LEP (Limited English Proficient) individuals.access for LEP (Limited English Proficient) individuals.

Meaningful access has been defined in August 16, 2010 Meaningful access has been defined in August 16, 2010 letter to Chief Justices and State Court Administrators by letter to Chief Justices and State Court Administrators by Assistant Attorney General Thomas E. Perez , Department Assistant Attorney General Thomas E. Perez , Department of Justice (DOJ), as providing qualified interpreters for all of Justice (DOJ), as providing qualified interpreters for all court proceedings, free of charge to the parties. court proceedings, free of charge to the parties.

Title VI regulations provide that “reasonable steps” * Title VI regulations provide that “reasonable steps” * must be taken to provide “meaningful access” to LEP must be taken to provide “meaningful access” to LEP individuals. individuals.

*Factors to be considered can be found in DOJ LEP Guidance *Factors to be considered can be found in DOJ LEP Guidance as published in the as published in the Federal RegisterFederal Register on August 16, 2000. on August 16, 2000.

Cost of Not Providing Cost of Not Providing Meaningful Access Meaningful Access Pursuant to Title VIPursuant to Title VI

Judicial ComplaintsJudicial Complaints

Federal LawsuitsFederal Lawsuits

AppealsAppeals

Language Access PlansLanguage Access Plans Noted in DOJ guidelines Noted in DOJ guidelines 67 Fed. 67 Fed.

Reg. 41,459 (June 18, 2002)Reg. 41,459 (June 18, 2002)

Purpose is to provide equal access Purpose is to provide equal access to the courts to participants who to the courts to participants who have a limited ability to speak or have a limited ability to speak or understand the English language. understand the English language. Plan notes reasonable steps that Plan notes reasonable steps that are being taken to provide are being taken to provide language assistance at no cost to language assistance at no cost to eligible LEP individuals. eligible LEP individuals.

Local Language Access PlansLocal Language Access Plans Judges in their counties must look to developing Judges in their counties must look to developing

local solutions to interpreter needs. local solutions to interpreter needs.

1. Appoint qualified (credentialed if possible) 1. Appoint qualified (credentialed if possible) interpreters for court hearings. interpreters for court hearings.

2. Note specific languages needs in your jurisdiction 2. Note specific languages needs in your jurisdiction and encourage those that speak these languages in and encourage those that speak these languages in their communities to contact the AOC to learn about their communities to contact the AOC to learn about becoming a credentialed court interpreter. becoming a credentialed court interpreter.

3. Take reasonable steps to ensure, as possible, 3. Take reasonable steps to ensure, as possible, that information and vital documents are available that information and vital documents are available in languages other than English as needed. in languages other than English as needed.

4. Take reasonable steps to make out-of-court 4. Take reasonable steps to make out-of-court service providers aware that they must provide for service providers aware that they must provide for language needs of clients coming to them for language needs of clients coming to them for services. services.

Training of StaffTraining of Staff Local judges can assist in making sure Local judges can assist in making sure

that their assigned staff know the local that their assigned staff know the local policies and procedures for providing policies and procedures for providing interpreters for LEP individuals for court interpreters for LEP individuals for court hearings. hearings.

AOC has created informational cards for AOC has created informational cards for judges, clerks and lawyers on judges, clerks and lawyers on interpreters issues.interpreters issues.

Short online video can be required to be Short online video can be required to be watched by staff called “Breaking Down watched by staff called “Breaking Down the Language Barrier,” a video training the Language Barrier,” a video training tool provided by the Department of tool provided by the Department of Justice.” Justice.” http://www.youtube.com/watch?v=qaVKy-2HWIo&feature=related

How to Get all on the Same How to Get all on the Same Page and be Title VI Page and be Title VI

CompliantCompliant Support a program or personally present Support a program or personally present

a program to local bar on interpreter a program to local bar on interpreter issues – educate the attorneys.issues – educate the attorneys.

Make sure your staff and the clerks Make sure your staff and the clerks know how to arrange for and obtain know how to arrange for and obtain interpreters.interpreters.

Educate the stakeholders in your area – Educate the stakeholders in your area – law enforcement, colleges, DA’s, law enforcement, colleges, DA’s, defense bar, private bar, etc. regarding defense bar, private bar, etc. regarding need for qualified interpreters.need for qualified interpreters.

Get more interpreters interested in Get more interpreters interested in becoming credentialed in your area.becoming credentialed in your area.

Questions and Questions and CommentsComments