• You represent a deaf driver, who incurred a dislocated shoulder while being forcibly removed from his vehicle for failing to respond to directions from the police, directions he never heard.
• What about the deaf person who reportedly "refused the breath test" by not blowing harder after being instructed to?
• Then there's the deaf inmate forced to serve out his sentence after failing to avail himself of the opportunity to appear before the Parole Board due to his inability to understand the written instructions for obtaining a hearing.
• Don't forget about the deaf man arrested on a bench warrant after he failed to respond in court when his case was called.
• And there's the deaf juror who was excused from jury service before you could question him to see if he could sit on your client's case.

All the above are real life situations in which, at the appropriate time, the presence of an interpreter could have made a difference for your client and for fair process and reliable results in our criminal justice system.

Studies conducted during 1996 by the National Center for Health Statistics reveal that there are approximately 22 million individuals, approximately 9% of the total U.S. population three years of age and older with reported hearing problems. Of that number between 421,000 and 1,152,000 are considered deaf. This wide variance is attributable to the fact that there is no legal definition of deafness.

These deaf individuals in America comprise a distinct, separate subculture of our society. A subculture with its own language, social hierarchy and values. Often viewing themselves as outsiders in a hearing world, they form tight knit groups and are reluctant to interact with the hearing world unless necessary. As a result of these differences the deaf population faces problems in every area of their life, in social situations, employment, education, etc.

These cultural and linguistic differences pose special problems for the deaf and hearing populace as they attempt to establish effective and meaningful communication. These problems are confronted and communication established however, through the use of an interpreter.

In general, an interpreter should be used when requested by a deaf person in order to communicate effectively and as a means of insuring equal access to services. Circumstances to be taken into consideration in providing an interpreter include:
 

• Communications skills of the deaf person
• Number of people involved in the communication
• Importance of the communication
• Length and complicated nature of the communication

By the time these deaf individuals require our assistance, not just any interpreter will do. In the judicial process, as well as in many other situations nothing less than a "qualified interpreter" is required. See generally, Internal Policy of the Kentucky Administrative Office of the Courts, Order Adopting Part IX, Procedures for Appointment of Interpreters of the Administrative Procedures of the Court of Justice.
 

• A qualified interpreter is an interpreter able to interpret effectively, accurately and impartially, both receptively and expressively, using any necessary specialized vocabulary. See KRS 30A.405(1).

Who is qualified however, may depend on a number of factors as the deaf or hard of hearing do not always communicate in the same manner. The manner of an individual's communication is dependent upon: type of hearing loss and their age at the time of the loss; their education and speech abilities; social factors; their personality and communication preferences. Some utilize American Sign Language (ASL), others use pidgin or Signed English, and others speech reading or "home" signs.

Like many other languages, Spanish, German, French, etc, the language of the deaf is considered, treated and taught as a foreign language. In fact, 16 states, Kentucky included, have specific legislation recognizing it as such. See, KRS 164.4785. Like these other foreign languages, ASL is not universal. Unlike these other languages however, which are of a spoken, auditory nature, ASL is a language of gesture, facial expression and physical nuance. It possesses its own grammar and syntax. It is based on the use of signs that represent a limited number of primarily concrete terms. As in any foreign language it is often difficult for words to be translated verbatim. It relies heavily on inflection to convey a great variety of information through manipulation of a root sign. In ASL, open-ended questions, abstract concepts, technical jargon and even big words cannot be used, as there is no effective way to convey their meaning.

ASL is a complete language within itself. ASL is not dependent upon English for its meaning and it bears no structural resemblance to English. Qualifiers follow, not precede nouns, events are placed in chronological order, cause and effect

relationships are generally stated as rhetorical questions, and conditional phrases are usually last. Because the average deaf high school graduate reads and writes at the fourth grade level, many have limited knowledge of English grammar rules and do not use English grammar even when writing. For example, the phrase "you must tell me what you really need the most" would, in ASL, be "your true most need tell me must." While the phrase "have you been to Kentucky" would be interpreted "touch Kentucky already you." It is due to the cultural and linguistic divergence between the deaf and the hearing populations that interpreters serve as a necessary bridge spanning the gap between two worlds.

An interpreter may be thought of as a facilitator. They do not serve as advocates, counselors or representatives. Both the Registry of Interpreters for the Deaf (RID) and the National Association for the Deaf (NAD) have established an Interpreter Code of Ethics which, as relevant for the scope of this writing, demands:
 

• Confidentiality
• Faithful rendering of the message
• Discretion in accepting assignments
• Remain impersonal

This Code of Ethics gives rise to other ethical restraints, require the interpreter,
 

• Stop the proceedings if a breakdown in communication occurs
• Make all communication accessible to the parties
• Refrain from participating in discussions about what is transpiring, i.e., remain neutral
• Avoid being or appearing to be in a position of authority so as not to intimidate the deaf person and cause them to acquiesce
• Refrain from speaking for any of the parties to the conversation

With effective communication being the objective of the interpretive services, a deaf individual may request another interpreter if the interpreter being utilized is unable to effectively communicate or if the interpreter's code of ethics is violated.

Within the judicial context an interpreter is warranted at the time Miranda warnings are given, during any interrogation, in the review of documents, in the taking of depositions, during any court proceedings, i.e., Grand Jury, conferences, all stages of criminal, civil juvenile, or mental inquest cases, etc. This list is of course in no way exclusive. See also, KRS 30A.425, KRS 344.500.

Due to the complexity and varying differences in the language and because of the complexity of legal proceedings there will be a demand placed upon the individual utilizing the services of the interpreter to spend additional time with the interpreter in order to insure accuracy in the communication process. This will often mean informing the interpreter of many legal terms they may encounter, advising them of the relevant charges and facts, the manner of the proceedings, etc. In turn, the individual may expect, and should seek out, advice from the interpreter on the most effective ways to phrase relevant questions before they are ever asked in order to avoid many problems that can occur. These communication differences further necessitate spending more time with the deaf client to insure they understand the process and the terms as well. For without the cultural and linguistic understanding of the information the deaf individual will not have the ability to comprehend many individual words much less the long often convoluted sentences used in the judicial process. The time of trial is not the time to attempt to educate your interpreter or client.

Kentucky has provided for the appointment of interpreters where the individual is:
 

• Detained in custody/arrested prior to any interrogation or taking of a statement. See, KRS 30A.400.
• In any matter before the court, criminal or civil. See, KRS 30A.410.

The Court of Justice is responsible for payment of the interpreter during any in court proceedings. KRS 30A.420. Out of court services must be paid for by the requesting individual/agency. KRS 30A.415. In these judicial types of proceedings, the interpreter should not be examined as a witness regarding what would otherwise be considered confidential matters, KRS 30A.430.

If you require the services of a certified interpreter you have the responsibility to inform the court of this need by contacting with the clerk of court or Court Administrator's Office. Arrangements will then be made through either the Kentucky Commission on the Deaf and Hard of Hearing (KCDHH), Kentucky Registry of Interpreters for the Deaf (KYRID) or Kentucky Association of the Deaf (KYAD) for interpreter services to be provided. Should you have a preference of interpreters, you should recommend that particular individual to the court liaison.

For other individuals working in a state agency, needing the services of an interpreter outside the courtroom setting, the Access Center Program within the Kentucky Commission on the Deaf and Hard of Hearing is available to assist you in choosing an appropriate interpreter. The need for such services outside the courtroom may occur when:
 

• access is needed to a public service
• the deaf person is a state agency employee
• a request made under a state or federal law
• necessary for access to a public event as defined by law

Exactly who may be the right interpreter for the job is as varied as the circumstances giving rise to the need. Whoever may be selected however must be qualified. As a measure of quality assurance the States follow two approaches in the regulation of interpreters. (1) The states may enact legislation specifically addressing the appropriate standards or (2) legislation may assign such authority to a Board, agency or Commission.

While such regulations began to appear in the early 70's it was not until the passage of the Americans with Disabilities Act (ADA) in 1990 that the impetus for quality and accessibility was felt. Today, the various state standards, viewed in combination with existing Federal law, provide comprehensive protection respecting the choice of the consumer while establishing reliable standard providers can rely upon and interpreters can achieve. The Registry of Interpreters for the Deaf (RID) and the National Association for the Deaf (NAD) serve as the yardsticks against which these interpreters are measured.

Both NAD and RID evaluations are given in Kentucky. The NAD testing includes a short interview covering the individual's knowledge of interpreting, ethics, situations, etc… followed by a performance test. This portion of the test consists of six different interpreting situations. NAD offers three levels of certification.
 

• LEVEL III (Generalist) _ shows good sign vocabulary but may have problems in sign-to-voice
• LEVEL IV (Advanced) _ does very well in sign-to-voice and demonstrates the necessary skill for interpreting almost all situations
• LEVEL V (Master) _ this interpreter rarely demonstrates any difficulty in interpreting in any situation.

The RID Evaluation begins with a "generalist examination." This exam is comprised of both written and performance tests. Both must be passed for certification. The written test covers five areas.
 

• General Socio-Cultural Systems
• Language/Language Use
• Socio-Political Context Interpreting
• Interpreting
• Professional Values

If the written test is passed the "Candidate for Certification" has five years within which to take and pass at least one of the performance tests. Whereas the NAD Certification qualified an individual at three different levels, the RID tests may qualify an individual on four levels. These levels are:
 

• Certificate of Interpretation (CI) holders are certified in Interpretation and demonstrate the ability to interpret between ASL and spoken English in sign-to-voice and voice-to-sign.
• Certificate of Transliteration (CT) holders are certified in Transliteration and have the ability to transliterate between signed English and spoken English in both sign-to-voice and voice-to-sign.
• Certificate of Interpretation and Certificate of Transliteration (CI and CT) holders demonstrate competence in interpretation and transliteration
• Certified Deaf Interpreter - Provisional (CDI-P) holders are deaf or hard of hearing and have at least one year of interpreter experience, completed at least eight hours of RID Code of Ethics training and eight hours of general interpreter training designed for an interpreter who is deaf or hard of hearing. This Certificate is valid for only one year after a CDI examination is made available. Currently this exam is being developed.

• Comprehensive Skills Certificate (CSC)
• Reverse Skills Certificate (RSC)
• Interpretation/Transliteration Certificate (IC/TC)
• Interpretation Certificate (IC)
• Transliteration Certificate (TC)
• Oral Interpreting Certificate: Comprehensive (OIC:C)
• Oral Interpreting Certificate: Spoken to Visible (OIC:S/V)
• Oral Interpreting Certificate: Visible to spoken (OIC:V/S)

The interpreter serves as a voice for the silent. In doing so, although impartial, they become an integral part of the team. A team that ultimately insures that the administrative, statutory and constitutional rights of the deaf, whether in court or out of court, are not overshadowed out of expediency, ignorance or by the process itself. Their importance to both the deaf and hearing populace cannot be overstated.