Alternative Law Journal
Do you swear by Almighty God that you will well and truly interpret the evidence that will be given and all matters and things that are required in this case to the best of your ability. Say the words ‘I do’.
Interpreter- I do.
The above is one version of the interpreter’s oath used in New South Wales courts. Court interpreters are required to enter into an oath to interpret faithfully, and great weight is given to such oath swearing by the system. However, ‘no amount of oath swearing can guarantee high quality interpreting from an interpreter who does not have the necessary competency’ , and the judiciary would be very naïve to think that oath swearing is all that is required to achieve a reliable service. Court interpreters face many challenges in attempting to interpret truly and faithfully. This article will discuss some of those challenges by analysing the intricacies of the task, contemplating the responsibilities of the interpreter, the other participants in the communicative event and the legal system, and exploring the ramifications of inaccurate interpretation.
The first step to achieving a faithful rendition is in understanding its meaning. Faithfulness, otherwise referred to as accuracy of interpretation, is an illusive concept that is inextricably linked to the context of the communicative event. The old machine metaphor has been cited by many as representing the legal system’s view of faithfulness. Judges have been quoted expressing opinions that reflect what has long been discredited by many, as in the following examples:
‘An interpreter really only acts as a transmission belt or telephone’
‘The interpreter should look upon himself rather as an electric transformer, whatever is fed into him is to be fed out again, duly transformed’
A literal, word for word translation will not produce a faithful rendition. It is very unlikely that any interpreter would ever attempt to do so consistently, even if they think the courts expect them to, as it would be an impossible task. The concept that faithfulness equates with literalness is very easily refutable with examples such as (1):
(1) Spanish original – ‘Estoy que no doy más’
Literal, word for word translation – ‘Am that no give more’
Accurate rendition (depending on the context) – ‘I’m dead tired’.
What is more difficult to prove is that there can be translations that, on the surface, may seem to be accurate because they are grammatical and comprehensible, but that do not convey the deeper meaning of the original utterance. This needs to be looked at in terms of the different approaches that can be taken to interpreting. Those who argue for a literal approach look at utterances at the word level and try to match each word, in the same order in the other language. Such translations would produce renditions such as example 1. The reason for this is that different languages have different grammatical rules, use different word order and express concepts in very different ways. A more advanced approach, commonly taken by untrained bilinguals, is to look at the utterance at the sentence level, out of context. Such translations will change the order of the words to match the target language grammar, but will not necessarily be accurate. This is called a ‘semantic translation’ and an illustration of its effects can be seen in example 2 from the OJ Simpson trial.
(2) Attorney: And you’ve been here 27 years, correct?
Interpreter: (accurate interpretation)
Witness: Haga la cuen/ vine en 69. Haga la cuenta.
Interpreter: I came in ’69, YOU figure it out. (laughter in courtroom)
Attorney: Okay. Why don’t YOU tell me, how long you’ve been here.
A literal translation of the witness’ original utterance would be:
‘Make the count/ (I) came in 69. Make the count’
We can see that the interpreter does not attempt to provide a literal translation. She provides a semantic interpretation, where she maintains the semantic meaning of the utterance, but not the intention behind it. At the semantic level, it can be argued that she produced an accurate rendition, one that was grammatical and comprehensible. A faithful interpretation, however, takes into account the whole message of the utterance beyond the sentence level. This is referred to as a ‘pragmatic translation’. To achieve this, the interpreter is required to undertake a thorough analysis before deciding on a rendition. Such analysis needs to consider not only the grammatical differences across languages, but also the cultural and pragmatic differences reflected in aspects such as different social conventions, ways of expressing politeness, and forms of address according to participants, to name a few. The analysis can be summarised in the following questions:
1. What is the propositional content of the utterance?
2. What is the intention behind this content? Does the speaker intend to be sarcastic, offensive, uncooperative, impolite, etc?
3. What is the force of the utterance? How is it delivered? What is the manner of the presentation?
4. What would be the likely effect of the utterance on the listener in the original language?
In relation to example 2, the answers to those questions would be the following:
1: The witness is saying that she came in 1969 and that she wants the lawyer to calculate the number of years she has been in the country. The interpreter understood the content of the utterance.
2: The witness’ remark was not intended to be impolite or aggressive. In English politeness is commonly expressed by using indirectness. A polite request, for example, would not normally be uttered in the imperative mood such as ‘Do this for me’, but more commonly in the interrogative mood such as ‘Would you like to do this for me?’. Although the form of utterance is a question, the function of it is that of a request. The speaker does not expect a reply but an action. In Spanish, the use of the imperative mood is not regarded as a sign of impoliteness as it would be in English. A Spanish speaker listening to the Spanish original of the above utterance would understand that the witness is having difficulty working out the number of years and is pleading for help. This is where the interpreter either misunderstood the original intention or was unable to reproduce it in a pragmatically appropriate way in English.
3: The Spanish speaker speaks in a neutral tone. She does not make use of any stress, as the interpreter does. The interpreter stresses YOU, which accentuates the incorrect intention. Had the witness wanted to produce the same effect, she would have used the pronoun Usted, which can be used for emphasis.
4: The reaction on the listener of the original utterance would not have been one of offence or aggravation. However, we can see that the interpretation triggered such a reaction in English. The interpreted utterance did not portray the original intention and consequently produced an unwanted and unexpected reaction. The interpreted utterance implies that the witness does not want to answer the question, that if the lawyer wants to know he should work it out for himself. This understanding of the utterance is reinforced by the laughter it produced in the courtroom. The lawyer reacts to this seemingly uncooperative attitude with a similarly impolite response: ‘Why don’t YOU tell me…’, mimicking the interpreter’s stressing of the pronoun. It is worth noting here also that the witness must have been at a loss to understand why her answer produced laughter. The only conclusion would be that the court is making fun of her inability to subtract.
A pragmatically accurate rendition of this utterance would have been ‘Could you work it out for me?’.
Language in the courtroom is not just the medium by which information is elicited, as in other contexts; it is itself a crucial element of the process. Language is used as a tool to achieve specific purposes. The adversarial courtroom has been compared to a battle between two opponents, where their main weapon is language. Cases are won, not only on how strong their material evidence is, but on how convincingly such evidence is presented. Evidence is adduced through oral questions and answers, and it is the way questions are posed and answers delivered that is of great importance in the courtroom.
A number of researchers have discussed the subtle ways in which language can be manipulated in the courtroom to suit the purpose of the questioner.
One way is through the use of strategic questions.
Tag questions are used extensively in the courtroom, especially in cross-examination at the end of leading questions. Their function is not to elicit information unknown to the questioner, but to probe, indicate suspicion, create friction and discredit witnesses.
The cross-examiner in example 3 is not asking the witness if he is making up his answers. She is telling him that he is, and using the tag to reinforce such accusation, challenging the witness to a defence. The falling intonation of the tag is very important also. If the tag had a rising intonation, then it would be interpreted as a genuine question.
(3) Counsel – You’re making all this up, /aren’t you?\
Interpreter – Usted está inventando todo esto.
(You are making all this up 
The interpreter omits the tag and simply interprets the statement in a flat tone. The propositional content, which is the semantic meaning of the question, is the same. However, the force of it (its pragmatic meaning) has been diminished. Not every language will have recourse to a tag to achieve the same effect and other strategies may be needed. In Spanish, the tag ‘no?’ would have been the appropriate choice. However, unless the interpreter understands the tactical use behind these linguistic devices, s/he cannot even attempt to match it in another language. Such knowledge and skills can only be acquired through formal, specialist training.
Numerous research studies have found that people are judged not only on what they say but on how they say it. This is usually referred to as speech style. Someone’s speech style can denote that person’s level of education, social class and character. In the adversarial courtroom, where evidence is given orally, such a consideration is of utmost importance. The credibility of witnesses’ testimonies is assessed not only on the content of what they say but also on the manner in which they say it.
Research conducted by Duke University showed very convincingly that witnesses with different speech styles were assessed differently by jurors on issues of credibility, competence, trustworthiness and intelligence. They called the speech style that was predominantly used by unprofessional witnesses from lower socio-economic backgrounds, ‘powerless’, and the style predominantly used by professionals, ‘powerful’. They found that those with the powerful style were consistently rated as more competent, more trustworthy and more credible than their counterparts. My own experimental research showed significant differences in the way witnesses were rated by mock jurors in terms of credibility in particular, based on the style of their speech. It also found that generally interpreters used their own style rather than replicating the witnesses’, leaving the decision makers no choice but to judge the witnesses based on the interpreter’s style rather than on the witnesses’. The results showed very convincingly that, when the interpretation maintained not only the content but also the manner of the original, a very similar rating as the original was achieved. When referring to style, I refer to the maintenance of the tone (expressed through the existence or absence of features such as intonation, hesitation markers, fillers and hedges), and the register, whether formal or informal. Examples 4 and 5 serve to illustrate this.
(4) Witness: Yo solamente le vi la hojita, que, o sea como, como brillosa, no más, y eso.
Stylistically accurate rendition: (I only saw the little blade, that, I mean, like like it was shiny, that’s all…and that)
Interpreter’s rendition: I just saw the shiny blade of the knife.
(5) A-No, no, porque él se alejó, se apartó para la izquierda y a mí me dejó la carretera libre.
Stylistically accurate rendition: (No, no, because he moved out of the way, he moved to the left and left me free passage)
Interpreter’s rendition: Not really, he just uh, uhm veered to the left and allowed my lane free.
The interpreted versions which omitted all the hesitations, repetitions and raised the register, such as in example 4, elicited much more favourable ratings with regards to credibility, competence and intelligence than did the original utterances in Spanish; whereas when the interpretation was faithful in terms of content and style, mock jurors gave it very similar ratings to the ones obtained by the original. On the other hand, when interpreters added their own hesitations and hedges, as in example 5, my experiments found that the interpreted version obtained a much lower rating than the original answer, with a stylistically accurate interpretation again obtaining a very similar rating to the Spanish original. What these results show is that style matters in the evaluation of character; that interpreters who are unaware of this fact change the style arbitrarily, sometimes producing a better result for the witness and sometimes producing a worse result for the witness; and that it is possible to achieve a very similar reaction as the original when these features are taken into account and maintained in the interpretation.
Considering the significance of language in the adversarial courtroom, and the consequences of inaccurate renditions, it becomes apparent that faithfulness of both content and style is paramount in this context. In other contexts, such as conference interpreting, only the content of the original is what matters. However, as previously mentioned, achieving accuracy is no easy task and requires the most highly competent and skilled interpreters. The first challenge for the court interpreter then, is to gain an understanding of what is required of him/her when made to swear on oath to interpret truly and faithfully. A survey of practising lawyers showed that many evaluate the interpreter’s competence on the coherence of the interpreted answers. Interpreters feel the pressure to improve on the style of the original, fearing that if they maintain the convoluted structure, hesitancy and incoherence, they will be judged as incompetent. If the original answers are incoherent and poorly structured, then an accurate rendition should maintain those features. Similarly, if the lawyer’s question is confusing and poorly structured, a good interpreter will also render a confusing and poorly structured question in the other language, which will most likely be misunderstood by the witness. It is however, the lawyer’s responsibility to rephrase the question, and not the interpreter’s.
The second challenge for the interpreter is to acquire the necessary skills to be able to fulfil the task.
Pre-service formal training is not a requirement for interpreters in Australia and therefore they are given no preference or monetary incentive based on their qualifications. This leads to a situation where only the very dedicated will spend the time, effort and expense necessary to acquire formal tertiary education. Most of the studies into court interpreting have analysed the work of untrained and unskilled interpreters. These studies have been crucial in highlighting the poor performance of many untrained interpreters. They should also serve to promote adequate training and remuneration in order to improve the available services. As in any other skilled profession, pre-service formal training should be compulsory. If the legal system is not willing to pay for a professional service, remuneration will never be commensurate with the required skills. If those members of the legal system who work with interpreters do not demand high standards and support adequate training and remuneration, little will ever change. Poor interpreting will inevitably impact on the work of lawyers and judicial officers and ultimately on the service of justice.
Another challenge for the court interpreter is the lack of recognition from the rest of the participants in the communicative event, that they need to share in the responsibility for effective communication. No matter how well educated and capable an interpreter is, s/he will not be able to interpret faithfully if the working conditions are not suitable, if the speakers speak at the same time, too quickly or for too long, if the interpreter is not provided with relevant material to prepare for a difficult assignment, or if the other participants expect interpreters to perform tasks that are not within their role. The role of the interpreter is to interpret faithfully, with all that that entails, and not to filter or improve on the questions or answers, to take the lawyer’s client to lunch, to offer personal opinions or to keep the defendant company in the waiting room — to name just a few examples of what interpreters have been expected to do. The following examples show two instances where the speakers present challenges for the interpreter to achieve a faithful interpretation.
(6) Counsel: Is that your signature?
Interpreter: ¿Esa es su firma? (Is that your signature?)
Witness: yeah, yeah.
Counsel: Can you ask him to wait until I finish
Interpreter: Si puede esperar hasta que le terminen.
(If you could wait until they finish)
In example 6, counsel addresses the interpreter instead of the witness. My data show that it is common for lawyers to resort to the third person (for eg. ‘can you ask him’) when they lose control or when they want to reprimand the witness. They either expect the interpreter to fix the situation or reprimand the witness, rather than do it themselves. The interpreter in example 6 is faced with two choices: should she be faithful to the original and interpret the lawyer’s utterance in the same person, even though she knows it was addressed to her? Or should she simply relay the command to the witness in her own words? If she chooses the first option, she lets the lawyer take responsibility for his utterance and emphasises that she is not there to do his work for him. If she chooses the second option, which is what she does, she deviates from a faithful rendition of the original but avoids any possible confusion with the witness. The second option softens the tone of the exchange and possibly the dynamics, as it does not give the witness the opportunity for retort.
(7) Witness: Ah, en el momento que yo fui a dejar
la declaración yo estaba muy nerviosa en ese momento estaba con mi inglés muy muy muy ah malo eh, mi situación]
Interpreter: At the time]
Witness: (to the interpreter) No, no, casi no diga eso, no diga eso] (No, no, you’d better not say that, don’t say that)
Interpreter: At the time I went to give the statement I was very very nervous, my English at the time wasn’t very good at all, and there’s something else.
In example 7 we see an instance of the witness speaking directly to the interpreter, but this time specifically asking her not to interpret what she already uttered. Here the interpreter is also forced to make a difficult choice. She knows she cannot abide by the witness’ request and omit the previous utterance all together, as the court would require her to interpret. She therefore ignores the witness’ request and interprets her previous utterance, which was unfinished. However, she does not interpret the request itself and consequently the court is never made aware of the witness’ intention to retract from her utterance, which may be highly relevant to the case. The interpreter adds a phrase at the end of her interpretation: ‘and there’s something else’, which I can understand refers to the witness’ unfinished utterance, but which the court would most probably interpret as being part of the witness’ answer.
These two examples are illustrative of the numerous choices court interpreters face as part of their work, indicating that their task is by no means a simple or mechanical one. The reasons behind these particular interpreters’ choices are understandable, considering the pressure placed on them by the lawyer and the witness. We can see that if the other participants had known and understood the interpreter’s role, they would not have forced the interpreter into having to make these difficult choices.
Interpreters often find themselves attempting to do the best they can under appalling working conditions and amidst competing demands from those around them who understand neither their role nor the complexity of the interpreting process. It is the system’s responsibility to provide adequate working conditions and appropriate professional remuneration. If interpreters are not paid and treated as professionals, they cannot be expected to act as such.
The following are some suggestions of the support that is needed from the system to facilitate the work of interpreters:
1. The recognition from the legal system that court interpreting is a highly complex task that requires adequate professional university training with commensurate remuneration.
2. An understanding from those who work with interpreters of the meaning of accuracy and the difficulties which interpreters may encounter during their work. An awareness that, at times, the interpreter may need to stop the proceedings to explain an ambiguity or some other translation difficulty. Compulsory training for lawyers and the judiciary on how to effectively work with interpreters, and on aspects of the interpreting process, could facilitate such understanding.
3. An understanding of the interpreter’s role from all participants. The role of the interpreter is to interpret faithfully and not to clarify confusing questions, make sure the witness answers relevantly, offer advice, or take on any other peripheral task that is not within their remit of competence.
4. Adequate working conditions. This could range from the very basic (such as a chair, drinking water and adequate breaks), to the more ambitious (such as an interpreters’ preparation room, background material to prepare for each assignment in advance, access to resources, and the provision to work in pairs as conference interpreters do).
The challenges of the court interpreter are many. The complexity of the interpreting task is exacerbated by the demands of the setting and by the lack of understanding and support from the participants and the legal system. Interpreters have a moral and a legal obligation in the courtroom to interpret faithfully. This obligation, however, can only be partly fulfilled by the interpreters themselves, by ensuring that they possess the adequate skills and education. To fully fulfil such obligation, all the participants involved in the interaction and the legal system itself must also do their part. Only then will interpreters be able to honour their oath to fully and faithfully interpret.
[*] SANDRA HALE has designed and taught in interpreting and translation degrees for 15 years. She is a NAATI accredited Spanish interpreter and translator.
© 2007 Sandra Hale
 S. Berk-Seligson The Bilingual Courtroom. Court Interpreters in the Judicial Process (2000) 204.
 See R. Morris (1995) ‘The moral dilemma of court interpreting’. The Translator, 1(1): 25–46; Sandra Hale ‘Pragmatic considerations in court interpreting’ (1996) 19.1 Australian Review of Applied Linguistics 61–72.
 From a US judge, quoted in S. Berk-Seligson, above n 1, 210.
 From an Australian judge, quoted in Sandra Hale The discourse of court interpreting (2004), 8.
 The word translation is the generic term for the activity of converting one language into another. More specifically, the term Translation is used to refer to written translation and the term Interpreting to oral translation.
 I. Mason & M. Stewart ‘Interactional pragmatics, face and the dialogue interpreter’ in I. Mason (ed). Triadic Exchanges. Studies in Dialogue Interpreting (2001), 51–70.
 See E. Loftus Eyewitness Testimony (1979); B. Danet & B. Bogoch ‘Fixed fight or free for all? An empirical study of combativeness in the adversary system of justice’ (1980) British Journal of Law and Society, 7 (36), 36–60; Sandra Hale ‘How are courtroom questions interpreted? An analysis of Spanish interpreters’ practices’ in I. Mason (ed) Triadic Exchanges. Studies in Dialogue Interpreting. (2001), 21–50.
 Hale, above n 7; R. Quirk et al, A comprehensive grammar of the English language. (1985).
 Quirk, above n 8.
 Hale, above n 7.
 See J. Bradac ‘Language attitudes and impression formation’ in H. Giles & W..P Robinson (eds). Handbook of language and social psychology (1990) 387–412.
 J. Conley & W. O’Barr Rules versus relationships. The ethnography of legal discourse (1990).
 Sandra Hale ‘How faithfully do Court Interpreters render the style of non-English speaking witnesses’ testimonies? A data based study of Spanish-English bilingual proceedings’. Discourse Studies (2002), 4,1,25–47; Hale, above n 4.
 Sandra Hale Community Interpreting (2007).
 Hale, above n 4.