The field of interpreting has come a long way from the days when friends and family were the individuals responsible for the interpreting of information. During the course of the last thirty-five years, research into interpreting has yielded a tremendous amount of insight regarding this task. As a result of this research, today's interpreter is expected to be a well-rounded, educated individual who conducts him or herself in a professional and ethical manner. Throughout the 1990's, the development of interpreter training programs at colleges and universities across the United States has served as a catalyst for the field of interpreting to be accepted as a true profession. This task is however, not complete.
The need for interpreters is clearly apparent in every major city across the country. Numerous requests for interpreter services go unanswered, making the lives of those individuals in need of interpretive services much more difficult. More important than the need for interpreters is the need for qualified interpreters. Far too often an interpreter who has no experience or formalized training in areas that require such training will be hired to provide interpreter services. The field of legal interpreting is one particular area where an under-qualified interpreter can have an egregious influence on the outcome of events.
The following is a brief history behind the use of the Miranda Warning and the necessity for qualified interpreters during a police interrogation. It is geared toward the aspiring interpreter who may be under the misconception that interpreting is the same in every setting. It will also pertain to those interpreters who are interested in working in the legal setting.
My interest in the field of legal interpreting stems from a background in criminal justice and the ultimate belief that everyone is entitled to equal protection under the law. When I began my endeavor into the topic of legal interpreting I was under the impression that I would be able to sum up all or most of the information pertinent to the interpreter in one short paper. I was seriously misled. While my scope of research was intended to include all aspects of the arrest procedure, the amount of specialized information and knowledge has forced me to limit my research to the history of interrogation and, discussion of issuance of the Miranda Warning. Also included in this paper is an interview I was fortunate enough to be able to conduct with Janice Cagan Teuber, a Boston area interpreter with extensive experience in the field of legal interpreting.
Over the course of the last 100 years there have been tremendous strides in the United States criminal justice system. Amendments to the original Bill of Rights have brought about reform in the area of law enforcement, resulting in the greater protection of the rights of those persons who are arrested. Back around the turn of the century the Bill of Rights served as a loosely interpreted document to be used by law enforcement and public officials to serve their needs at the time. As always, the fifth amendment right to refuse questioning based on the grounds that one may incriminate oneself was in effect. However, the terms of this Amendment were applied only halfheartedly, leading to the conviction of many criminals that had no understanding of their rights. For more than half a century suspected criminals were forced to give confessions in lieu of fierce beatings or long, torturous interrogation sessions. In the latter half of this century, however, proactive liberal judges revamped the interpretation of the 5th Amendment with a decision that would redefine criminal interrogation procedures.
The landmark case of Miranda v. Arizona was a U.S. Supreme Court case which resulted in a ruling that specified a code of conduct for police interrogations of criminal suspects held in custody. Supreme Court Chief Justice at the time Earl Warren, who cast the deciding vote in the five-to-four majority ruling, declared that the prosecution may not use statements made by a person under questioning in police custody unless certain minimum procedural safeguards were followed. The court established new guidelines to ensure "that the individual is accorded his privilege under the Fifth Amendment" not to be compelled to incriminate himself (eb.com).
In Miranda v. Arizona the court reversed an Arizona court's conviction of Ernesto Miranda on charges of kidnapping and rape. After being identified in a police lineup, Miranda had been questioned by police; he confessed and then signed a written statement without first being told that he had the right to have a lawyer present to advise him, or that he had the right to remain silent. Miranda's confession was later used at his trial to obtain his conviction. The court held that the prosecution could not use the statements obtained by the police while the suspect was in custody because the Police had not made clear Miranda's right to not incriminate himself (eb.com).
The Miranda decision was one of the most controversial decisions of the Warren Court, which under Chief Justice Warren had become increasingly concerned about the methods used by local police to obtain confessions. In an earlier case (1964), Escobedo v. Illinois, the court had ruled that criminal suspects must be made aware of their right to consult an attorney. But that decision had failed to specify the exact procedures police must follow to ensure that the suspect's rights are not violated.
Known as the Miranda Warnings, these guidelines include informing arrested persons prior to questioning that they have the right to remain silent, that anything they say may be used against them as evidence, and that they have the right to the counsel of an attorney.
The Miranda ruling shocked the law-enforcement community and was hotly debated. Critics of the Miranda decision said that the court, in attempting to protect the rights of individuals, had seriously weakened law-enforcement agencies.
Interrogation is, in criminal law, a process of questioning by which police obtain evidence. The process is largely outside the governance of law except for rules concerning the admissibility at trial of confessions obtained through interrogation and limitations on the power of police to detain suspected persons against their will.
In the United States relatively elaborate safeguards have been placed on police to ensure legality in the interrogation procedure. In Escobedo v. Illinois (1964) and Miranda v. Arizona, (1966), the Supreme Court required that the police inform a suspected person of his right to remain silent and of his right to have legal counsel present at his interrogation. These decisions were criticized as having created a legal system that hinders the police officer, and advocates for the criminal. Some critics pointed out that similar restrictions could not be found in the legal procedures of other countries. Most agreed that in Escobedo and Miranda, the Supreme Court stretched the constitutional requirements of right to counsel and freedom from self-incrimination for the purpose of achieving social justice for indigent defendants.
Since 1966 when the decision in the case of Miranda v. Arizona was handed down, many other things in this country changed dramatically also, including the acceptance of the research that declared ASL a naturally occurring language. Not that these two issues had anything to do with one another, but the proof that ASL was indeed a language led to the up-rise of professional sign language interpreting, hence putting us where we are today.
Along with the acceptance of ASL came the need for interpreters who were qualified to interpret in situations that could be deciding factors for their clients, such as the medical or legal settings. For instance, I've been asked an ethically centered question regarding a recently pregnant deaf woman who was in the doctor's office. The doctor was unaware that the woman was pregnant and prescribed a medication that I knew to be harmful to pregnant women, but whether the woman was pregnant was never asked; what should I do? Many instances of interpreting will not be this cut and dry; you can clearly see the need for interpreters who are making well-educated, ethically sound decisions. Another good argument for the importance of a competent, ethical, interpreter is in the legal setting.
The interpretation of the Miranda warning, as well as many other legal texts and technical jargon, is arguably the most difficult of all interpreting situations to work in. There are so many variables involved in these types of situations that it is literally impossible to predict a clean, smooth communicative experience. I was fortunate enough to speak with a legal interpreter with extensive experience in this situation. This interview helped a lot and went as follows:
There are a quite few considerations that every interpreter should take into account before accepting an assignment in this setting
Q: When you are asked to interpret the Miranda Warnings, what are the first considerations you make? How do you prepare yourself (as best you can) for the assignment you are about to work in?
A: The first considerations I make are how does the Deaf person communicate. Is this person someone I have worked with before? What kind of relationship do I have with this person? Is this person inebriated? High? In touch with the world (i.e. not what I would consider "Psychotic", though I am not a Psychiatrist, and cannot diagnose). And, lastly, do I need a CDI?
Q: Due to varying language requirements, do you always recommend/require that a CDI be present for the interpretation?
A: No, I do not automatically recommend/require a CDI. Depending on the Deaf person, either I need one or not. If the person is unknown to me, and I have the flexibility of time and police departments (sometimes, they are extremely flexible, and will give me lots of time to assess the situation, and figure out if I need a CDI, and sometimes they are just "hard a__".
Q: How do you go about explaining your role and function to police officers or investigators who are in a rush to proceed with the inquiry of the Deaf participant?
A: To be honest, I have not encountered arresting/booking officers who were in a hurry, and didn't have time to let me do my thing. I am sure they are out there, but I have been lucky. I have been in the business a long time, and I tell them so. I don't usually get guff from the men in blue (or black, depending on where they are from).
Q: If you feel like a situation is becoming a little one-sided, or as if the police are taking control of the communication process before you feel there is a clear understanding and waiver of rights, how do you proceed?
A: I will tell them that this situation is not working, and I cannot do my job, and they will either have to get someone else, or let me do my job. If they continue to push, I will put it on the record (usually in writing to be included in the file, or on the tape recorder, that in the opinion of the interpreter, the Deaf person is not clearly understanding the proceedings (either the questions or the Miranda). If they continue to proceed, then I have it on record that the communication wasn't happening.
Q: Have you ever walked into a Miranda/interrogation situation that you were either emotionally or otherwise unprepared for? If so, how did you respond to this situation? And, looking back upon that situation, would you have done anything differently?
A: I have never walked into a Miranda/interrogation situation for which I was not prepared as to the content. As far as the Deaf person is concerned, I may not have been prepared for the particular communication style, or language choice, but one doesn't always get that information.
I also viewed videotape geared toward interpreting in the legal setting (specifically the Miranda Warnings) that gave me some very effective ideas on how to approach this task. Some of the key things to look for would be:
- -Is this someone you have worked with before
- -What is your relationship (if any) to the deaf person?
- -Is the person inebriated (high), in touch with what's happening around them?
- -Is this the suspects first time in this situation, or are they a recidivist?
- -Being aware of the Deaf consumers' ability or inability to communicate effectively with you is essential for the assignment. Circumstances don't normally permit for a sit down conversation with the suspect, but in the first few minutes that you have to assess, it is crucial that you are understood, and understand the suspect. If necessary, don't be afraid to say that this situation isn't going to work. Suggest a CDI to use if you know one and volunteer to return under the proper circumstances.
- -The use of a CDI is good for a few reasons.
- it helps to establish a rapport between you and the deaf person.
- It helps to relieve the tension the suspect may be feeling due to the situation.
- Having a CDI present allows you, the hearing interpreter, to focus so much more on the task of producing a good interpretation of an ASL message and spend less energy trying to figure out or guess at what the suspect is trying to say.
- -Have an understanding of the fact that, although the police have a specific goal in mind (namely, getting a confession), and may be in a hurry to question the suspect, it is your absolute responsibility to ensure that the deaf consumer is aware that they are accepting a knowledgeable waiver of their rights. Time is not an issue when dealing with understanding.
- -The police may view you as a hindrance to their goals. When acting in an ethical manner, there is no shame in taking your time to make sure that understanding is occurring. If a situation arises where the police officer ignores the fact that understanding isn't happening, you don't have to fight him or quit the assignment. If the police officer continues with questioning even though you've made it clear you don't believe understanding is occurring, you can state, on the record, your position. This ensures that later on both you and the suspect will be protected from unlawful prosecution.
- -Make sure that the deaf person knows that there is no time constraint.
- -Be aware of the power that you have, and use it wisely. Often times using your power doesn't necessarily mean you are taking power away from someone else. In fact, it could serve to empower that someone else.
- -Find out such pertinent information as: How much experience the police officer has working with deaf people; other foreign language users; interpreters?
- -Often times when you enter a situation like this the suspect will be highly agitated and may look to you as an "open eye". You must be sure that the suspect knows what your role and function is as an interpreter. The real trick to this is to not alienate the suspect in the process.
- -Functioning effectively in the legal setting requires a broad base of knowledge about technical legal jargon. This should motivate an interpreter who wants to work in this setting to research and gain an understanding of legal doctrine on all levels. Only after this understanding occurs can the interpretation be accurate.
In a setting such as this the tension in a room can be high. The goals of each of the participants may be very different, and most likely are. The interpreter's main goal should be to ensure comprehension by the deaf participant. The goal of the police officer, as told in the interview is also to ensure understanding, but this is only important to the police officer because he/she is looking for a confession/admission of guilt that cannot be appealed. The goal of the deaf participant is the variable. As an interpreter walks into the situation, he/she may have an idea of the circumstances surrounding this interaction, but can never really predict what will happen. Not being a mind reader, the interpreter is forced to make an assessment as to the understanding that is being accomplished by the deaf participant. The deaf participant may not have any clearly understood goals.
The issue of trust is also a major influence in an interpreted interaction. A suspect may view the interpreter as an employee of the police department, and may therefore be reluctant to acknowledge the interpreter as an impartial entity. If trust is established however, it is up to the interpreter to maintain that confidence by following his/her personal code of ethics. These ethics can become a serious issue if the interpreter is subpoenaed to the witness and asked to testify on behalf of any of the participants involved in that interaction. There are currently no laws protecting the interpreter's interactions as "Privileged communication", such as doctor's lawyers, clergy, and wives are granted. So an interpreter who deems him/herself bound by their code of ethics to not testify and reveal information in an interpreted interaction may find themselves held in contempt of court. Hopefully there will be some resolution to this issue with the further acceptance of interpreting as a profession.
The following are some situations which interpreters may find themselves having to make decisions based on the ethical requirements as set forth by the RID.
Setting: Rural town in SE United States/Police station interrogation room, Time: Friday, May 19, 2000/ 2AM
Participants: Deaf,SWF-age 24 arrested on her graduation day and charged with DWI, resisting arrest, and assault on a police officer. Breathalyzer administered approximately one hour ago revealed a .19 Blood Alcohol Content (BAC). Police officers: WMs ages 28 & 30 with 7 and 10 years service respectively. Part of a DWI taskforce, this is not their first encounter with a deaf drunk driver.
Interpreter: SWF-age 28-Recently certified with RID, This is her first experience interpreting in the legal setting.
Action: The interpreter enters the Police station and is able to speak with the arresting officers as well as the interrogating officers to obtain the state of mind that the suspect is in currently. The interrogating officers inform the interpreter again that she is present t administer the Miranda Warnings and gain consent for another breathalyzer, which originally was not consented to. When the interpreter enters the room she can see that the deaf participant is visibly inebriated. Upon attempting to assess the deaf participant's language requirement, she realizes that comprehension cannot take place.
The reason this scenario was designed was to challenge the interpreter's ability to fully empower the deaf participant. In no normal situation would a suspect be expected to grant a knowledgeable waiver of rights under the influence of this much alcohol. The fact that the deaf participant was this intoxicated makes the job of the interpreter a little easier; the police can plainly see what state of mind the she is in and thus cannot deny that she is not understanding. Also, it is entirely likely that an interpreter will enter a situation like this if he/she is inclined to accept an assignment in this setting.
This situation is kind of an ethical "no brainer." The interpreter would be remiss if she did not recognize this state of affairs and recommend that the questioning take place when the suspect was more perceptive, and receptive, of the rights and questions being presented.
Setting: Police headquarters in an urban area in the NE United States/suspects are in separate rooms until the interpreter arrives. Then both are moved into the interrogation room. Two detectives are in the room with the suspects, who are both prohibited from speaking/signing to one another. Two deaf males have been arrested and charged with triple homicide in relation to a drive by shooting earlier that afternoon. One of the suspects had a van that matched the description of the vehicle used in the shooting. Upon being pulled over, the two men were acting suspiciously and therefore were searched, at which time the police officer found a semi-automatic weapon in the passenger's possession. Both the driver and the passenger were arrested on the scene and brought to the station for questioning.
Participants: 2 deaf males/ #1 is age 28, a repeat offender, this would be his third felony arrest, which if convicted on this count, would mean life in prison without the chance for parole. Education: Little or no educationůspent most of his life in and out of group and foster homes/ history of sexual and physical abuse. Low verbal skills/ some PSE and home sign. He is belligerent and uncooperative, with no interest in cooperating with the police or the interpreter. He shows no signs of remorse for his actions. #2 deaf male: Age 21, first time offender/ no prior arrests. He was driving the car but had no knowledge that the man in the passenger seat was carrying a weapon/ and definitely had no idea that he intended to use it. Having never been arrested, he is noticeably frightened and is confused about whom to look to for guidance- his new acquaintance in the deaf man or the interpreter and the police. Education: High school education, mainstream program/proficient in ASL and PSE/ currently attending Voc. Tech school/ smart boy from a good family background who got mixed up with the wrong person at the wrong time. He had just recently met this other deaf man and the two, as far as the boy knew, were going to the mall to go shopping when the man randomly shot into a crowd of people, killing two adults and a small child.
Interpreter: Married female, age: 32, mother of two small children. Second year as an RID certified interpreter with limited experience in the legal setting, and certainly no experience with a situation of this magnitude. She does however feel confident in her ability, as she has been preparing herself for her legal interpreting certificate test.
Police officers: Two detectives, Ages 35 and 39, both part of the robbery homicide unit of the police force. Both are infuriated with the situation, since a small child was involved, and really want to elicit a confession from the two men.
Action: The interpreter enters the interrogation area and has a brief discussion with the detectives about the nature of the crime and what their goals are for this interaction. They make clear that they want the deaf participants to have a clear understanding of their rights and a desire to waive those rights and continue with the interrogation. When the interpreter enters the room she sees the two men sitting there, the driver (21) looks at her and begins to swear by his innocence and lack of knowledge about the entire ordeal. As this is happening the other deaf participant (28) is poking at the boy, telling him to shut up. The seating in the room is arranged so that the interpreter would have to sit near the older of the two suspects.
The question that is of concern in this scenario is the safety of the interpreter. Now, the seating in the room would be fine for a normal interpreted interaction, but the special circumstances of this situation dictate that another logistical arrangement must be made. The interpreter in this situation not only has the right, but the duty to him/herself to protect their life. The police also have a responsibility to the interpreter to keep him/her safe from any probable danger. The fact that this deaf participant was a three-time offender is a clear indication that special measures must be taken to ensure the safety of all non-police personnel. Also, the theory that the interpreter could interpret for both men at one time is not really conceivable. First and foremost, the language ability of the two men varied greatly. Second, the attitudes and experience of the two deaf participants should be a clear indication to the interpreter that these two men have very different needs, and to interpret for both at the same time would be bound to create inequality for one of the men.
There are so very many considerations that must be taken into account when dealing with settings in the legal environment. I have only touched on the complexities that are involved in one aspect of the legal realm. For an interpreter to develop a working knowledge of the "Ins & Out's" of legal interpreting, they must be prepared to go through a lifetime of learning, workshops, and specialized training just to maintain the level of competence that is required in this field. Hopefully, with the recent gain in popularity in the education of Sign Language Interpreters, the field of interpreting will have the luxury of requiring much more formalized training for those interpreters who wish to delve into the difficult task of specialized interpreting.