THE WRITTEN RECORD.

Bill Poser at Language Log has a brief post about problems caused by inadequate translation in court. What particularly struck me was this: “No one really knows how often this leads to miscarriages of justice, in part because it is very difficult to appeal on these grounds because appellate courts normally consider only the written record of the trial, and the written record contains only the English translation of the testimony, not what was actually said.” This strikes me as a serious problem, and it seems to me that trial records should include a taped record of foreign-language testimony so that if there is a complaint about the translation it can be checked. Otherwise, what’s to prevent an ignorant or malicious interpreter from completely distorting, or even inventing, testimony?
Bill is talking about Canada; does anyone know what the situation is elsewhere? I presume it’s no better in most places, because preserving the original would be cumbersome, but if there’s a jurisdiction that does that, I’d love to know.
Addendum. Follow-up by Roger Shuy at the Log, with further details on this problem.

Comments

  1. “The defendant states that his hovercraft is fiulll of eels.”

  2. Time was when a Scot (presumably a Highlander) could be denied a trial per mediatatem linguae in an English court, because “a Scot was never counted here an alien, but a subject.” And this before the Union of the Crowns yet!

  3. michael farris says:

    I remember reading about one horror story in sign language (this was years ago in Silent News a monthly newspaper for Deaf people).
    First, direct quotes are frequent in normal ASL and often only signalled by a shift in the body position toward the location associated with the person being quoted (is that clear?)
    Anyway, the deaf victim of an attempted murder was in a hospital bed and being interrogated and quoted the killer’s confession “I killed them”. But the interpreter misunderstood the phrase as being a confession given by the person in bed.
    IIRC it (finally) worked out okay, the interrogation was being filmed and upon replays it was decided that the deaf person’s shoulder movements were substituting for the normal body shift (mobility was impaired since they were in bed after all).
    But still, a scary story.

  4. Inttranews, a news aggregator on interpreting and translating, occasionally carries stories about cases in the U.S. and elsewhere in which mistranslation by the court interpeter leads to a mistrial or something similar. For instance, there’s this story about a man in Daytona Beach, Fla. whose plea and sentencing were thrown out after the court determined (based on recordings of the proceedings) that he had received inadequate translation from Spanish. The article says that a digital recording system has only been in place in that judicial circuit for the past two years. (I know that in federal immigration courts in the U.S., the proceedings are always taped now, but I don’t know how long that’s been standard practice.)
    And then there’s the recent news that a Bosnian Serb army commander is getting his sentence reduced by the U.N. war crimes tribunal due to errors made by the court’s interpreters.

  5. Actually, I was talking about the US as well. The fact that appellate courts normally look only at the written record is a feature of the English system of law and is, I believe, true wherever the legal system derives from English law. I’m not sure about other legal systems.
    Incidentally, a variation on this issue is presented in an episode of Law and Order that was on (a rerun, I think) recently. A witness testifies in Spanish. One of the jurors, who understands Spanish, tells the rest of the jury that what the witness said was not quite the same as what the interpreter said. This causes a mistrial because from a legal point of view the juror introduced into the jury’s deliberations evidence that was not before the court.

  6. I really don’t know about this. I thought it was a U.S. thing about the written record. For example, U.S. lawyers are constantly objecting, or relatively frequently objecting, because if their objection is not on the record the point cannot be relied on in the appeal. It’s also the U.S. that makes such a very full record with such a huge use of court reporters, not that they don’t exist in England. In Germany, the written record is very slight, and in addition no verbatim record is kept even of the interpreted version of statements, just summaries.

  7. It can get simpler and stupider than any of these other exapmles. Law enforcement and courts routinely screw up Asian names. An immigration judge once told me that as an immgration lawyer she had once gotten a client off because she argued successfully that the person named in the documents was not in fact her client. This is not just a matter of mistaking the surname for a personal name, but also of making a hash of roamanizations, and of conflicting dialectal forms – surnames like “Chin” are notorious toublemakers.

  8. Reminds me of the fun I could get away with as I was growing up translating correspondence my schools would send to my parents.
    I’d chuckle to myself thinking that my parents were thinking “Damn, it’s not all Greek to me!”

  9. surnames like “Chin” are notorious toublemakers
    Not to mention Wu, the Cantonese version of which is Ng.

  10. My experience is from Israel (working as a translator and interpreter 1989-2001) and the U.S. (2001-present)), and I’ve seen miscarriages of justice done in Israel due to the language issue. Some cases that caught my attention included one where the police used the 13-year old son family members of a rape victim to interpret for her (do you think they got the information the way they wanted it?) and the general practice of taking testimony in Hebrew when the interview is in another language, in a form of on-the-fly interpretation. This evidence is then admissible in court, without the deposed party being able to have any control over it.
    In the U.S. things seem to be a great deal better – more organized, at least. I’ve run into situations where courts have needed an interpretr, and generally, they have gotten one. Phone interpreting has made less common languages more accessible. However, I’ve also run into cases where one of the parties to a dispute or criminal action used a faulty translation, as you can see in the link.

  11. Dena,
    You forgot to put the href in the tag so the link doesn’t work.
    Bill

  12. I fixed the link. Thanks for the heads-up.

  13. There are some awful examples from Aboriginal Australia. Theoretically if the defendent cannot communicate in English the court is supposed to find an accredited interpreter, but most Aboriginal peple don’t know that, and many languages don’t have accredited interpreters, and the interpreters dn’t always know the legal terminology (if there were any monolingual Bardi people, I’d probably be the most qualified Bardi translator, which is really scary). There are many cases of courts assuming Kriol and English are the same (they’re mutually unintelligible) and misunderstandings based on culture and Language/accent issues. Diana Eades has done a lot of work on this. One example is bush people will try to minimise the time they spend in court or with the police by just agreeing with everything – this might include confessing to something they didn’t do. There’s a notorious Native Title case where an old man said “that’s properly my country” (ie. that’s smack in the middle of his traditional lands, that land belongs to him) that got written in the court record as ‘that’s probably my country’, which seriously degraded the perceived reliability of the witness.

  14. Just think, if the participants were rhotic, then “properly” and “probably” would have been much more distinct. (Non-rhotics sometimes spell “probably” as “proberbly“, or even “properbly“.)

  15. Ng is sometimes translated Ing, which is also a Norwegian name. Yuengling, the name of a German beer, also looks Chinese (mor properly it would be Yungling or Yongling, but close enough).
    One of these days I’l tell y’all the story of Jon Jonson’s Chinese laundry.

  16. Ben, I think the confusion lies mostly in the lack of voicing contrast.

  17. Claire: I’ve read something by Michael Cooke on the problems of English/Aboriginal legal translation and interpreting. It seems like an extreme case of the cultural divide that all foreign defendants experience in court. Here’s a PDF file on Indigenous Interpreting Issues for Courts:
    http://www.aija.org.au/ac01/Cooke.pdf

  18. My mother was a court reporter [Australia], and she mentioned that there’s a problem as well when a defendent speaking in a foreign language, throws a few pieces of English into the middle of their spiel.

  19. The Netherlands has a similarly horrendous system in which no verbatim transcript and no audio tape is kept of proceedings.
    As an english-speaking defendant I also found myself in the absurd position of having to testify through an interpreter even when every single person in the room was fluent in English, and then having to correct the interpreter’s Dutch translation!
    To make matters worse, the written record never came close to transcribing the actual proceedings, and the various judges felt free to make plainly illegal pronouncements that never made it into the record.
    The same was true for police interrogations. The police would only write down, in Dutch, the part of the interrogation that they found incriminating, making it even more incriminating in the translation process, despite the fact that they themselves were asking questions in English!

  20. Wow, that’s appalling.

  21. Historically, this was an issue in courts in Wales for centuries: from the 16th to the 20th century, the only officially recognised language in criminal trial proceedings was English (and the majority of the professional judges on the assize circuits were English), but for most of that period the majority language was Welsh. Interpreters were extensively used in courts, but commenters often worried about this. William Gerard, late 16th century: “many tymes the evidence is tolde accordynge to the mynde of the interpreter, whereby the evidence is expounded contrarie to that which is said by the examinate, and the judge gyveth a wronge charge…” Benjamin Malkin, early 19th century: even the most competent interpreter “can never convey the exact meaning, the tone, the gesture, as it bears upon the verbal impact of the evidence, the confidence or hesitation of the witnesses. The consequence is, that property or even life may be endangered by a defective interpretation…”
    (I think I’ve read something about similar difficulties in French-speaking parts of Canada under British colonial rule. But I’m not sure if I can find a reference.)

  22. I once met an employee of Hansard, who record the speeches of the British Parliamentarians. As a matter of policy they don’t transcribe speeches verbatim but put them into some sort of grammatical context. Some British MPs (John Prescott comes to mind) are much more lucid on the page than when you hear them. Does this not apply to other Parliaments as well?

  23. Thanks Margaret!

  24. David’s comment on the Netherlands system is interesting. I understand that the police, if they acted as described, were exploiting the system for their own advantage. I hope there’s some kind of check on that. I suppose it happens everywhere.
    As for the court: the lack of a full written record has to do with the lack of a jury system, I take it. It is the same in Germany. What I haven’t yet worked out is how this fits into the grand scheme and whether it really is so disadvantageous for the defendant.
    One thing I would like to point out: David says that everyone in the court spoke fluent English, and at the same time that he had to correct the interpreter’s Dutch rendering. That is a contradiction in terms and suggests that a number of people in court did not have a full understanding of English, even if they thought they did. Of course it doesn’t excuse the interpreter’s mistakes, but unfortunately that can happen anywhere.

  25. In the UK all police interviews and court proceedings are tape recorded. I came about written court reports (http://www.livenote.com/) only in civil cases in the High Court in London where both parties are sharing the costs.
    I frequently happens that the interpreter of the defense (who is a different interpreter from the one used by the police) would listen to the tapes and check if the police interpreter made any mistakes. Should these be serious the tapes will most probably not used by the CPS in evidence or discrepancies will be clarified during trial in court.
    Margaret
    > As for the court: the lack of a full
    > written record has to do with the lack of a
    > jury system, I take it.
    Well, as you know we have a jury in Crown Courts, but it is simply for lack of funds that they normally don’t have any written records of the proceedings. The solicitor or assistant solicitor would write down everything that is being said in detail to assist the barrister in Crown Court hearings.

  26. It frequently happens that the interpreter of the defense (who is a different interpreter from the one used by the police) would listen to the tapes and check if the police interpreter made any mistakes. Should these be serious the tapes will most probably not used by the CPS in evidence or discrepancies will be clarified during trial in court.
    That sounds like an excellent system; it’s a shame more jurisdictions don’t use it.

  27. During a trial of one rather notorious Russian gangster, the interpreter consistently used “brothers” as an equivalent to Russian “братва”, which is about the same as translating “Cosa Nostra” as “my case” :)

  28. Heh. (But that’s quite an exaggeration.) Anyway, how would you translate it?

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