Kentucky has experienced a massive influx in the past three to five years of non-English speaking immigrants, legal and otherwise, Spanish and sometimes indigenous-language speakers. In our state courts, there is an urgent need to educate all of the participants and personnel involved in court-interpreted cases as to the role, function, duties, and responsibilities of interpreters. There is a similar critical need to endeavor to find trained and qualified interpreters or train those who are currently being paid out of state funds to provide interpreter services to the courts. Despite the very capable, excellent professionals who work in our court system, the language issue apparently confounds people who otherwise think perfectly clearly about the functioning of the judicial setting.

Please allow me to give an example from another professional setting, that of medicine, where comparable problems complicate the rendering of health services to patients who do not speak English sufficiently well to be attended to. It has been the practice locally, in some situations, although not all, for health providers to a) use family members, including small children, to assist in the communication of medical care to their parents or relatives, and b) to seek out staff members of limited language skills in order to communicate with the patient. In the former circumstance, the health care providers are inadvertently violating the patient's confidentiality regarding medical treatment, and in the latter, may very well be infringing upon the patient's civil rights insofar as the patient has the right to give informed consent as to treatment, to understand what treatment is being administered, what are the alternatives and consequences to treatment, post-clinic or hospitalization follow-up procedures, and soon. My point, which hopefully is clear, is that absent the "language barrier;" no health care professional would dream of involving a patient's child or administering care without informed consent, in keeping with the practitioner's professional standards, as well as to avoid potential costly litigation against the provider as well as the medical facility.

In a similar fashion, when for communication purposes it becomes necessary to introduce an interpreter into the judicial setting, comparable potential legal ramifications hold. An interpreter whose language skills are not sufficiently developed so as to meet the stringent requirements of judicial interpreting can adversely affect otherwise viable guilty verdicts, resulting in lengthy and costly appeals and reversals. The net cost to the state, and to the court system, over the long term is far greater than that which would be, and should be, expended at present in order to bring more professionalism into the current situation here in Kentucky. On the other hand, with regard to a defendant at the receiving end of poor or inadequate interpretation, I would hope that it is also clear that his constitutional rights to a fair trial or hearing are seriously undermined. Suppose, also, that we have an interpreter with adequate language skills but no formal training, or one ignorant of formal procedures. If at a guilty plea, the interpreter does not use the same grammatical person as the speaker, i.e., in response to the Court's question, "How do you plead?', the interpreter replies, "He say she is guilty," a guilty plea made under such circumstances can be invalidated under appeal, and in fact has been so invalidated elsewhere, as the interpreter is erroneously giving a conclusion as to what the defendant means to communicate. The interpreter's proper role is to repeat exactly, verbatim, what the defendant says.

In many courts throughout Kentucky, a local individual who professes or is believed to be bilingual is often sought to perform this service. Our courts should understand that not every bilingual individual can move seamlessly between the first language and the second, and certainly not everyone who can in fact move seamlessly between the two is capable of competent interpretation. Court interpretation demands by far, more exacting standards of rendering the interpreted communication than those required of interpreters in any other setting, including that of the United Nations. In a published article, Patricia Michelsen of Virginia has noted that, "Most people do not realize that an interpreter uses at least 22 cognitive skills when interpreting." The interpreter must listen to the original message, by segments or "chunks" of meaning, lagging behind the speaker (known as `decalage'), understand and process the message, formulate a rendition in the target language, monitor her rendition for accuracy, grammatical correctness, register and other factors, utter aloud the monitored rendition, correct any variances which the monitoring process detects, listen to the next meaning segment which must then be interpreted, while concentrating on the speaker and tuning out the sound of her own voice. These processes often require mental decisions which must be made in a split second. Environmental factors of the courtroom itself which contribute to the stress experienced by the court interpreter and hinder her performance include the following: the speaker or question exchange conducted at a fast rate of speed, speakers interrupting one another or speaking at the same time, lack of clarity, logic, or coherence of the speaker, the interpreter's lack of familiarity or experience with the subject matter, especially technical vocabulary, the speaker's accent and enunciation patterns, the speaker's level of education and use of non-standard communication patterns or vocabulary, long utterances by the speaker without pausing, background noise, not to mention that the interpreter must often sit at the back of a speaker or at a distance from the witness stand so as not to interfere with the jury's ability to hear the witness. Another scholar of interpretation issues points out that," ordinary listening entails too much loss, and [. . .] interpreters have to listen to speakers with much more concentration than is usual in everyday life." Michelsen also observes that, "judiciary interpreters have the additional pressure of knowing that nothing less than the life and liberty of human beings are at stake in the proceedings they are called upon to duplicate in a defendant's native tongue. The awareness that each word mistranslated or omitted hinders the non-English speaker's ability to follow the proceedings against them is a constant source of tension." The fact that only four per cent of examinees of the federal Spanish court interpreter certification exam pass that exam (which, by the way, has a cutoff rate for passing set at only seventy five or eighty percent) is testament to the difficulty of the task the court interpreter faces. Pulling a "bilingual" person off the street or out of a university classroom or ethnic restaurant is, at best, sheer ignorance, and is certainly no more logical than using beauty pageant judges to preside over judicial hearings.

I think it is also very important to emphasize that the interpreter hired by the court system must at all moments adopt a neutral, impartial posture. Her services are engaged not to assist the defense or the prosecution, but rather to serve all the parties in the courtroom in communication with a non-English-speaking witness or defendant. Adversarial counsel and the Court should be encouraged to accept this principle as fundamental to the role and ethical responsibilities of the professional interpreter. The absolute last thing I want is to have any impact on the outcome of a trial or hearing in serving the application of justice.

What I would venture to suggest at this juncture is attention to the following problems, by identifying extant problems, providing you with concrete examples of these problems, and suggesting possible solutions. First, we need to advocate for the use of certified, trained interpreters in Kentucky courts. Use of non-trained, non-proven, or unqualified interpreters is a growing problem in Kentucky, one that cannot and should not be ignored, and some changes should be made urgently, on the ounce of prevention principle. Kentucky has recently joined the National Consortium for State Courts, which has developed a certification examination for court interpreters. In the interim period before practicing interpreters can take this examination and thereby show some evidence that they have the skills necessary to interpret in court, we should advocate mandatory training in standards and norms, and above all, ethical conduct. Since the state issues payment for services provided, it can determine not to pay individuals who do not participate in such training, and the state can likewise exact monetary charges to any interpreters who attend such training, if the state undertakes to organize such training. If it does not, the state can nominally support the organization of workshops on procedure, skills and ethics by publicizing such workshops, which may be conducted by experienced interpreters brought into Kentucky from elsewhere, and obligating the costs of such workshops to be borne by those who aspire to earn fees by rendering interpreting services to the courts. I have been told of an interpreter in a state court east of Lexington who tells individuals "they had better plead guilty." Educating such an interpreter as to the limits of his role will not guarantee compliance with the precept that the interpreter is not to give legal advice, but if he does not know he is doing wrong, he certainly cannot correct his improper behavior.

Concomitantly, we need to educate prosecutors, defense attorneys, and judges as to the standards interpreters must abide by, and encourage these individuals to do everything in their power to facilitate interpreters' accuracy at their demanding task. Providing the interpreter with pertinent (and non-privileged) documentation in advance of non-routine hearings such as suppression or evidentiary hearings and trials lessens the intense demand placed on the interpreter to be accurate, that is, the demand on the interpreter is lessened, not the accuracy requirement. Recently I was engaged to provide interpretation at a trial, and came to the courtroom knowing only that the individuals on trial were charged with assault, and were a father and son. Fifteen minutes before jury selection began I was handed seven pages of documentation which I hastened to read, which included five pages of a medical report regarding the assault victim (he had reconstructive plastic surgery to repair damage to the orbital eye area and other facial injuries), along with a police report detailing time and other circumstances of the arrest. Had I had access to such documents a day or more before the trial, I could have prepared a list of any unfamiliar vocabulary along with a "cheat sheet" of pertinent addresses, names of witnesses, places involved, instruments utilized, etc., for my own personal use and to be referred to while testimony is being given. Similarly, when an attorney argues case law, I can jot down in advance prior cases and criminal code citations, and refer to these while the speaker makes his arguments. Such advance preparation reduces the possibility that the interpreter will have to intrude upon the proceedings to ask the speaker to repeat or clarify something, and permits the examining attorney to go about his or her business without an interruption to his or her train of thought or line of questioning. Examining attorneys, furthermore, should be aware that complex questions which must be interpreted to a non-English-speaking witness should be broken down into segments, since the non-English speaker frequently becomes confused by such questions. Individuals of low levels of literacy in their native language often tend not to follow linear patterns of thought, both in utterances directed to them, as well as in their own responses. In the case of Spanish, a verb does not require an enunciated pronoun, and third person verb forms can refer to the subjects "he," "she," or the formal "you" in the singular, or "they" or formal "you" in the plural. An attorney cognizant of this potential for confusion can modify such questions appropriately. Cultural differences likewise affect a non-English-speaking courtroom participant's ability to grasp what is going on. Neither plea bargains or jury trials are routine occurrences in judicial systems in other parts of the world. Consequently, we should advocate for informative workshops which educate attorneys and judges as to special considerations which ought to be kept in mind regarding interpreted proceedings.

We should also advocate that the interpreter have prior linguistic contact with any witness who is to testify at a hearing. Individuals speak with regional and personal variations, and those who live in a world where the prevailing language is not one that they speak may invent words, may use verb forms which fell out of use in standard Spanish in the seventeenth century, or other completely unexpected utterances. It is hard for the educated American, as all judges and attorneys are, to understand this, although most of us have heard it said that in rural pockets of Appalachia speakers still conserve linguistic usages that are traceable back to Elizabethan times. Television and radio along with mandatory schooling up to a certain age have tended to standardize American English usage, but in rural areas of Guatemala or Mexico, standardization of language use may simply not be the fact. Furthermore, the Hispanic caught up in the American judicial system may speak an indigenous language as his native tongue, and only enjoy superficial knowledge and understanding of the interpreter's spoken Spanish. If the adversarial attorneys understood that the interpreter is merely concerned with getting the task done accurately, they would realize that the better the interpreter understands the context of the message to be interpreted, the better the interpretation, and the better the outcome for all involved.

Finally, we should advocate for the use of certified and trained interpreters for communication between witnesses and arrestees and the police or prosecutors, as the circumstances may be. The Lexington Metro Division of Police has taken commendable steps in seeking Spanish language training for their officers, but these officers should not be employed as interpreters during official interrogations, especially in light of the fact that they do not swear an oath to interpret accurately, truly, faithfully, and without bias-and probably are not trained to interpret according to these standards. (If they must interpret at such official interrogations, they should be provided with a proper, legal equivalent of the Miranda warnings translated into the detainee's language, so as not to taint or jeopardize any information gained from subsequent questioning.) It is similarly problematic for the prosecutor's office to use family members or friends of the witness or victim as an official interpreter. Such individuals are apt to leave out information due to lack of skill, or possibly omit information which they fear might be prejudicial to their friend or relative. I would reiterate here that the use of a professional, trained, qualified interpreter, who knows his or her duties and ethical constraints, promotes the best outcome of the judicial proceeding and diminishes the probability of reversals or loss of confessions or other significant portions of evidence due to technicalities. All such errors are costly in terms of financial and human resources.

Finally, I would advocate two suggestions regarding specific provisions which should be implemented regarding the individual interpreter's right or authorization to continue providing Kentucky courts with interpreter services. One, that guidelines require continuing education in order to maintain one's certification once it is obtained. California has such a requirement as part of its state certification system, and while pesky and bothersome to the individual interpreter, such a requirement tends to promote high standards and uniformity of services provided, which is beneficial to the profession as a whole. Second, there should be a review procedure to deal with alleged interpreter misconduct or malpractice, and for any individual who fails to desist from such improper conduct, a terminal procedure which would strip him or her of eligibility to continue providing such services to the courts.

I might make a secondary suggestion that illegal aliens should be advised by the court of the immigration consequences attending upon a guilty plea prior to entering such a plea on the record.

Attorneys and judges are perhaps in a better position than I to evaluate the merits of the arguments I have presented here. I assure you, however, that I make these arguments in light of my personal professional experience, and out of a passionate desire to see the professional court interpreter's position advance to higher expectations and standards than those presently existing in our state.