The ATA Chronicle - November/December 2023 - 17

into consideration the
comprehension of
the listener. " 15
There was an unavoidable
paradox in that proposition
that was very difficult to
overcome: " Title VI requires
interpreters to produce a
message that abides by all
the accuracy standards but
also assist the LEP listener
to achieve meaningful
comprehension. " 16
The Right to Due Process
This " meaningful
comprehension " is essential
to safeguard the LEP
defendant's right to due
process. The Constitutional
Amendments that protect
all defendants can only be
guaranteed to LEP individuals
when the courts appoint
a competent interpreter.
This right to an interpreter
was solidified after the
decision issued by the Second
Circuit Court of Appeals in
1970 regarding the case of
Rogelio Nieves Negrón, an
immigrant from Arecibo,
Puerto Rico.17
Facing a trial
for murder with no ability to
understand or an interpreter
to assist, Judge Irving
Kaufman called Negrón's trial
" constitutionally infirm, " 18
adding: " Not only for the
sake of effective crossexamination,
but as a matter
of simple humaneness,
Negrón deserved more than to
sit in total incomprehension
as the trial proceeded. " 19
Shortly after this case, a bill
was presented in Congress
for a Bilingual Courts Act,20
which was eventually
approved as the Court
Interpreters Act of 1978.21
At that time, however,
there were no standards or
procedures to appoint an
www.ata-chronicle.online
interpreter or specific ideas
about the manner in which
interpreters were to perform
their official duties. We know
this from the testimony
during the Congressional
hearings on the Bilingual
Courts Act that took place
between 1973 and 1978.
The Senate's chief counsel
asserted at the time how
everyone was pretty much
in agreement about not
wanting United Nations-type
simultaneous interpreting in
the courts.22
William Foley,
then deputy director of the
Administrative Office of
the U.S. Courts, added that
the Judicial Conference's
Committee on Court
Administration " found
some difficulty in reaching
a precise determination as
to the meaning of an oral
simultaneous translation
as would be required in
criminal cases. " 23
What they did know, and
what almost every witness
mentioned, was that the
non-English-speaking
defendants needed to
understand: " Considerations
of fairness...require at a
minimum that the nonEnglish-speaking
party to a
judicial proceeding ought to
have present means to fully
understand the progress
of his cause. " 24
Assistant
Attorney General John
Pottinger said: " The ability
of a party to comprehend
what is happening in a
judicial proceeding may
well be considered an
implied element of the
constitutional right to
a judicial proceeding...
equality before the courts
means more than the mere
providing of all parties
with the same tangible
protections and guarantees.25
The only court officer with the
duty to provide language access
is the interpreter, and that
privileged position as the only
language expert in the courtroom
should not be forfeited to judges
or defense attorneys.
Pottinger added: " ...Equality,
in fact, requires that each party
be able to participate and to
comprehend the proceeding.
The question seems to me
to be how most efficient
to ensure that parties
are able to comprehend
the proceedings. " 26
[Emphasis mine.]
They were also very clear
about what they didn't
want. They didn't want
interpreters changing the
testimony of a non-Englishspeaking
witness or inserting
themselves in the process
by addressing the defendant
directly. And they didn't want
to have misinterpretations
caused by the interpreter's
faulty command of the
language, limited range
of vocabulary, or lack of
knowledge about regional
variations of language use.
Defining Duty of Care
With this legislative history,
case law on the right to
an interpreter from both
federal and state appellate
courts, and the constitutional
right to due process in
mind, we can assemble a
more particularized duty
of care that takes us past
the enigmatic " meaningful
language access. "
Judiciary Interpreter's Duty
of Care: The legal obligation
to provide LEP defendants
and litigants with an oral
rendition into the listener's
native language of what is
being said in English during
court proceedings so that
they can:
a) Be informed of what
happens in court with
a reasonable degree of
rational understanding.
b) Fully understand the
testimony of Englishspeaking
witnesses
against them.
c) Communicate with
their attorneys and
participate effectively
and knowledgeably in
their own defense.
For defendants in criminal
matters, the appointment
of an interpreter also
guarantees the basic and
fundamental fairness required
by the due process clause
of the Fifth and Fourteenth
Amendments. This accessory
duty falls on the defense
attorney-to request
the appointment of an
interpreter-and the judge-
to appoint the interpreter for
the LEP defendant. Of course,
we know that the judiciary
interpreter's duty is not
limited to the courtroom, but
this analysis is meant to elicit
further thought and input
from the entire community
of interpreters and, as such,
American Translators Association 17
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The ATA Chronicle - November/December 2023

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