Thursday, March 03, 2016

Confronting the Interpreter

Lawrence Solan

An interesting question concerning forensic linguistics is making its way through the appellate courts:  When the police use an interpreter during an interview (or interrogation) of a suspect who later becomes a defendant in a prosecution, and the defendant’s words in her original language are not recorded, does the defendant have a constitutional right to confront the interpreter?  As a cost-saving measure, more and more law enforcement agencies, and some courts, have been retaining services that interpret the interview over the telephone.  One of them, Language Line Solutions., has found itself in the middle of this constitutional question.
Depending on the policy of the police department, the interview may not be recorded.  The police officer present at the interview testifies at trial as to the English version of what the defendant said.   The defendant denies having said in her native language the equivalent of what the interpreter attributes to her in English, and the court must then decide what to do.
In United States v. Aifang Ye (No. 12-10576 (9th Cir. 2015)), the Ninth Circuit ruled that there is no right to confront the interpreter under the Sixth Amendment standards set out in Crawford, since the interpreter’s statements are not testimonial – rather, they are merely a conduit from one language to another.  Ye was convicted of aiding and abetting in providing false information for a passport application.  Some of the evidence against her came from what she said in an interview conducted by an agent of the Department of Homeland Security.  Questions were asked in English, answered in Mandarin Chinese, and interpreted over the phone by Language Line, an agent of the U.S. immigration service.  The interpreter then reduced the interview to a written statement.  Ye claimed that there was a mistranslation because she never would have said that there had been a forgery, a word used by the interpreter. 

The circuit court found that the interpreter’s method for testing Ye’s agreement to the account (which was to insert “intentional inaccuracies” that she then detected) was reasonable.  The court also adopted the government’s position that interpreting service was known to hire professional, experienced interpreters, brushing aside claims that as a paid agent of one party in a litigation, the possibility of bias is always present.
Ye has petitioned the U.S. Supreme Court for certiorari.  Whether or not the Court hears the case, the issue is of growing importance.  Other courts, both state and federal, are struggling with the issue.

However Ms. Ye’s case is resolved, courts should be more realistic in their understanding of what interpreters and translators can do.  First, courts should stop relying on the “conduit” theory of translation.   Compare two reputable translations of any work of literature.  They will be similar in some ways, different in others.  To the extent that word choice matters in the context of a criminal prosecution, nuanced differences may affect a case’s outcome. Second, interpreters make errors.  The legal system should recognize this.  Third, courts should not accept as accurate representations that the entire professional staff of a private firm retained by the government is dispassionate and of high professional character.  Surely the defendant need not accept such representations.

The beginnings of a solution to all of this was suggested in a recent oral argument before the Supreme Judicial Court of Massachusetts in Commonwealth v. Adonsoto ( 11978, 2/11/2016):  Record the interviews.  If the government wishes to save money by using interpreters who work over the telephone from wherever they reside, and therefore cost less, they should also make it possible to examine and challenge the interpretation without the cost of a live appearance in court.  There are many reasons for police interviews to be recorded.  This one has constitutional ramifications. 
Once the interviews are recorded, much of the time there will be no controversy about the relevant statements, in part because the thrust of an interview is probably clear enough most of the time anyway, and in part because both the interpreter and the investigator will have an added stake in making sure that the results of the interview are clear.  When a defendant does raise a serious issue of interpretation, a court may occasionally suppress the statement as not reflecting what the defendant actually said.  If the government wishes to move ahead, however, it will have to produce the interpreter to enable the defendant not only to challenge the substance of the interpretation, but to argue bias or any other such defenses.  The defense, in turn, will generally need to use its own experts at trial. 

On the whole, this system will result in significant savings to law enforcement agencies when compared to the cost of hiring live interpreters in each instance.  Complying with the Constitution in all instances, however, may not be cost--free.

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