“All rise.” Everyone stands. The judge takes his place on the bench, everyone sits. The defendant follows your lead and you note his wide-eyed expression as he looks earnestly in your direction. You are an American Sign Language (ASL) interpreter and it is your job to interpret exactly what is about to be said in the courtroom. You are the communication link to justice for this defendant.
This year marks 25 years of ASL courtroom interpreting in the United States. Shirley Herald, a 72-year-old veteran interpreter from Arkansas, has been on board from the start. Having seen it all, she exclaims, “It’s been a phenomenal experience!” An ASL interpreter some 16 years before such accommodations were federally mandated by the Americans with Disabilities Act (ADA) of 1990, Herald and her colleagues in Arkansas pioneered state legislation regarding the provision of ASL interpreters. Now the definitive standard, every state, with the exception of Alaska, has a statute regarding the provision of interpreters for the hearing impaired in courtrooms. Certified interpreters must pass a national examination through the Registry of Interpreters for the Deaf (RID) or the National Association of the Deaf. And though many of the kinks have been worked out over the years, insuring a fair trial to a person with hearing loss still has its challenges.
Foremost among them is that not all people with hearing loss are fluent in ASL, and for some, such as the deaf-blind, ASL is not even an option. Those who have lost hearing late in life may not know sign language. Even though the need for alternatives to the traditional interpreter has brought Communication Access Realtime Translation (CART) into the legal arena, it is only an option for literate people who have lived in the hearing world at least part of their lives (see “And If You Don’t Use ASL?” p. 23).
According to the Oregon Department of Human Services Deaf and Hard of Hearing Service, since ASL is not a written language, it is common for a person who primarily uses ASL to read and write in English at about the third- to fifth-grade level. Add to limited literacy the complexity of legalese and what results can be a very low level of understanding in not only what is being said in the courtroom but what it all means.
More Than Words
Language is an underestimated dynamic by the usual courtroom players. Only the interpreter and person relying on her can begin to appreciate the complexity of communicating specialized legal vocabulary across languages and trying to convey who among the many courtroom voices is saying what, when. In “An Interpreter Isn’t Enough: Deafness, Language, and Due Process,” clinical professor of law at the University of Wisconsin, Michele LaVigne, comments on the attorney, jury and judge’s preconceptions about the interpreting process:
“Language deficit among so much of the deaf and hard-of-hearing population is a complicated issue—one that is difficult to even understand, let alone fix. In many respects, it almost seems unfair to expect judges and lawyers to address the problem adequately when experts in the field are still searching for answers. Nevertheless, these deaf individuals will enter the justice system, and, like every other person, they have the right to due process and access to justice, which the legal system must provide...
“There is a pervasive belief within the legal system that if we put an interpreter in front of a deaf person, the interpreter will instantly (and perfectly) convert spoken language to the appropriate language for the deaf person and the communication problem will be solved, thereby freeing everyone from further worry or inquiry and allowing business to proceed as usual. Occasionally this approach works, though not nearly as often as we let ourselves believe. Even a highly educated, highly literate deaf person will be forced to fill in blanks when she is subjected to the typical high-velocity American courtroom.”
Beyond the basic quality of being bilingual, for justice to be served, interpreters must be people of unabashed integrity. RID asserts, “The only way that the legal rights of deaf people can be assured and the integrity of the legal process be safeguarded is by having qualified, RID-certified interpreters who have received rigorous training in legal interpreting.”
Herald underscores the impact these specialized interpreters have. “You can have skills but if (interpreters) can’t be trusted ... well, you can’t use them,” Herald claims. She adds that interpreting is a physically and mentally taxing task. Errors can occur and the hallmark of a true professional will be interrupting the process to correct an error, if necessary.
Is ADA Enough?
Even the best interpreter may be poorly understood due to no fault of her own. And should she perceive it, she is ethically bound to refrain from explaining or clarifying to correct misunderstandings.
John L. Moore, CEO of Deaf Services Center (DSC) in Worthington, Ohio, says there is often a need for a relay interpreter who is deaf to clarify what the interpreter says and what the judge means. In a few cases, the deaf person in the courtroom may have minimal language skills in any language and in that case, an ASL interpreter would not be the best approach. “An additional interpreter (usually deaf) would be needed to ensure effective communication. The court system may have problems with it and does not understand why it is needed and may resist having to pay for an additional interpreter,” says Moore.
It would be an understatement to say the court would object to an interpreter helping a defendant, witness or plaintiff understand legal terminology and the court process. Such activities are specifically forbidden by the court interpreter code of ethics. Certified interpreters pledge to render exact interpretations and nothing else. Moore is suggesting that although an interpreter can put ASL users on equal footing where language is concerned, many people with hearing loss may need additional assistance for a fair trial – an advocate who can effectively communicate with them.
However reasonable and truly equitable an interpreting advocate might seem, such accommodations are not required by law. Title II of the ADA states, “No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” To date, provision of an interpreter has satisfied this legal requirement.
Moore and DSC aim to further improve the courtroom experience for people with hearing loss by conducting training for judges, court personnel, lawyers and others involved in the court process. “If this can be done, then more barriers in communication can be torn down and fairer access to the courtroom setting can be provided to a deaf client just like a hearing person in the courtroom,” Moore maintains.
With a quarter-century of perspective on people with hearing loss in the justice system, Herald has noticed a domino effect at work. The efforts of one advocate have spurred the action of another until 49 states and the federal government now all have a basic protection for people with hearing loss going through the justice system. The ADA provisions apply even to prisoners. Those who assert that the current legal provisions are still inadequate are the continuing force of this domino effect that one can only hope ends with justice for all as the last domino falls.
