1. Lost in Translation Are We Hearing What We Need to Hear? Interpreters and Limited English Proficient Participants Judge Chris Craft Shelby County Criminal Court Itzel Neal Tennessee Certified Spanish Court Interpreter Mary Rose Zingale Court Services Director Administrative Office of the Courts

2. Supreme Court Rules 41 and 42 Rule 41: It is essential that the … communication barrier be removed, as far as possible, so that these persons are placed in the same position as similarly situated persons for whom there is no such barrier. Rule 41: It is essential that the … communication barrier be removed, as far as possible, so that these persons are placed in the same position as similarly situated persons for whom there is no such barrier. Rule 42: This rule is promulgated to assist the courts in this state in providing equal access to the courts to participants who have a limited ability to speak or understand the English language. Rule 42: This rule is promulgated to assist the courts in this state in providing equal access to the courts to participants who have a limited ability to speak or understand the English language.

3. The Role of an Interpreter  To render a complete and accurate interpretation or translation without altering, omitting, or adding anything to what is stated or written, and without explanation.  “Interpret” in this context does not mean explain. It means providing an equivalent meaning in the target language as the one stated in the source language.

4. What kind of skills does it take to become a court interpreter? Being bilingual is not sufficient. The level of expertise required for court interpreting is much greater than that required in everyday conversation. Being bilingual is not sufficient. The level of expertise required for court interpreting is much greater than that required in everyday conversation.

5. What kind of skills does it take to become a court interpreter? Interpreter must be TRI – Lingual. Must know: English Target Language Legal Language AND must have Excellent mental skills – must be able to accurately convert the source language into the target language and vice versa, with only an instant to choose the equivalent words.

6. Exercises

7. VIDEO VINGNETTES: Inadvertently making Interpreters’ Jobs Difficult

8. Appointing an Interpreter Appointing an interpreter is a matter of judicial discretion. The court shall, pursuant to SCR 42, appoint an interpreter according to the following preferences: (1) Certified (2) Registered (3) Non-Credentialed

9. Interpreter Video Vignettes

10. Certified vs. Registere Certified vs. Registered Have passed the three-part oral exam including sight, consecutive, and simultaneous translation. Have passed the three-part oral exam including sight, consecutive, and simultaneous translation. Have passed the oral proficiency conversational telephone interview with score of Superior. Have passed the oral proficiency conversational telephone interview with score of Superior. Have not passed all three parts of the oral exam. Have not passed all three parts of the oral exam.

11. Registered vs. Non-Credentialed Have passed the oral proficiency conversational telephone interview with score of Superior, BUT Have passed the oral proficiency conversational telephone interview with score of Superior, BUT Have not passed all three parts of the oral exam. Have not passed all three parts of the oral exam. Have not taken or passed the oral proficiency interview. Have not taken or passed the oral proficiency interview. Have not taken or passed the written exam. Have not taken or passed the written exam. May not have completed the ethics and skill building workshop. May not have completed the ethics and skill building workshop.

12. When to appoint a non- credentialed interpreter The court may appoint an interpreter of lesser preference (i.e., registered instead of certified or non- credentialed instead of registered) only upon a finding that diligent, good faith efforts to obtain the certified or registered interpreter, as the case may be, have been made and none has been found to be reasonably available. The court may appoint an interpreter of lesser preference (i.e., registered instead of certified or non- credentialed instead of registered) only upon a finding that diligent, good faith efforts to obtain the certified or registered interpreter, as the case may be, have been made and none has been found to be reasonably available.

13. When to appoint a non- credentialed interpret When to appoint a non- credentialed interpreter A non-credentialed interpreter may be appointed only after the court has evaluated the totality of the circumstances including the gravity of the judicial proceeding and the potential penalty or consequence involved A non-credentialed interpreter may be appointed only after the court has evaluated the totality of the circumstances including the gravity of the judicial proceeding and the potential penalty or consequence involved.

14. Before appointing a non-credentialed interpreter, the court shall make the following findings: (i) that the proposed interpreter appears to have adequate language skills, knowledge of interpreting techniques, familiarity with interpreting in a court setting; and (i) that the proposed interpreter appears to have adequate language skills, knowledge of interpreting techniques, familiarity with interpreting in a court setting; and (ii) that the proposed interpreter has read, understands, and will abide by the Rules of Ethics for Spoken Foreign Language Interpreters in Tennessee Courts. (ii) that the proposed interpreter has read, understands, and will abide by the Rules of Ethics for Spoken Foreign Language Interpreters in Tennessee Courts.

15. Before appointing a non-credentialed interpreter, the court shall make the following findings: cont. (f) A summary of the efforts made to obtain a certified or registered interpreter and to determine the capabilities of the proposed non- credentialed interpreter shall be made in open court. (f) A summary of the efforts made to obtain a certified or registered interpreter and to determine the capabilities of the proposed non- credentialed interpreter shall be made in open court.

16. Unacceptable examples for use of non-credentialed interpreter Finding someone who works across the street at the Mexican restaurant Finding someone who works across the street at the Mexican restaurant Bailiff, probation officer, party’s attorney Bailiff, probation officer, party’s attorney Relatives or friends of the defendant Relatives or friends of the defendant Someone who volunteers at the courthouse and speaks Spanish Someone who volunteers at the courthouse and speaks Spanish When non-credentialed interpreters are used, there is a high possibility of misinterpretation that can directly When non-credentialed interpreters are used, there is a high possibility of misinterpretation that can directly affect the outcome of a case.

17. When to Appoint Multiple Interpreters For legal proceedings lasting more than two (2) hours. For legal proceedings lasting more than two (2) hours. A team of two interpreters should be designated to ensure accuracy and completeness of the record by allowing interpreters to alternate work and rest in short shifts for proceedings lasting more than two (2) hours. A team of two interpreters should be designated to ensure accuracy and completeness of the record by allowing interpreters to alternate work and rest in short shifts for proceedings lasting more than two (2) hours.

18. Responsibility for Obtaining an Interpreter Protocol should be established with the clerk’s office, secretary, attorney, etc. for both civil and criminal cases Clerk’s OfficeAttorneySecretary

23. Interpreter Photo ID Cards The Administrative Office of the Courts distributes photo identification cards to all state certified and registered interpreters. A court can determine an interpreter’s credentialing status by viewing this card, which differentiates between registered and certified interpreters, and by consulting the credentialed interpreter roster, which can be found on the AOC’s website (www.tncourts.gov ). www.tncourts.gov

24. Simultaneous Interpreter Equipment Each judicial district has been issued simultaneous interpreter equipment. Each judicial district has been issued simultaneous interpreter equipment. ***If you cannot locate the equipment in your district, please check with all judges in the district, or contact Mary Rose Zingale at the AOC.*** ***If you cannot locate the equipment in your district, please check with all judges in the district, or contact Mary Rose Zingale at the AOC.***

25. Rules that Govern the Appointment, Credentialing, and Compensation of Interpreters Tenn. S. Ct. Rules 41 and 42 Tenn. R. Evid. 604 Tenn. Code Ann. § 16-3-813

26. Judicial “Bench Cards” AOC has produced “Bench Cards” for judges. AOC has produced “Bench Cards” for judges. Can be found on Interpreter Page of AOC website: http://www.tncourts.gov/sites/default/fil es/docs/judges_bench_card_8-2013.pdf Can be found on Interpreter Page of AOC website: http://www.tncourts.gov/sites/default/fil es/docs/judges_bench_card_8-2013.pdf http://www.tncourts.gov/sites/default/fil es/docs/judges_bench_card_8-2013.pdf http://www.tncourts.gov/sites/default/fil es/docs/judges_bench_card_8-2013.pdf

27. Current Funding for Interpreter Costs for Court Hearings  With the full support of the Supreme Court, the AOC requested and Governor Haslam included in the 2012-2013 AOC budget an additional $2 million for the costs of spoken language interpreters for court hearings. This was ultimately approved by the Tennessee General Assembly and funding became available July 1, 2012.  This funding allows for payment of interpreter costs in cases other than Rule 13 cases and gives a rare and new opportunity for the courts to provide persons with more meaningful access to court hearings; to enable judges to better communicate with parties; and to enable LEP persons to more fully participate in court proceedings.

28. Payment of Interpreter Costs AOC will pay interpreter costs for all in-court hearings in all CIVIL OR CRIMINAL cases in: Juvenile Courts Juvenile Courts General Sessions Courts General Sessions Courts Trial Courts Trial Courts Appellate Courts Appellate Courts REGARDLESS OF INDIGENCY of the parties and ONLY if there is an appointment order.

29. Payment of Interpreter Costs in Rule 13 defined cases where the party(ies) is indigent AOC will process interpreter invoices for: (i) All court hearings; (ii) Pre-trial conferences between defendants and district attorneys in order to relay a plea offer immediately prior to a court appearance or to discuss a continuance; (iii) Communication between client and state funded counsel appointed pursuant to Supreme Court Rule 13; and communication between client, state funded counsel and others for the purpose of gathering background information, investigation, trial preparations, and witness interviews.

30. Interpreters for Victims of Crime Rule 42 7)(h)(4) Pursuant to Article 1, Section 35 of the Tennessee Constitution, interpreter costs will be paid pursuant to Rule 42 for services to victim(s) of crime during court proceedings in which the victim(s), or in the case of a homicide, the next-of-kin, are present.

31. Interpreter Compensation for the Spanish Language Rule 42 Section 7(a): Rates of Services for interpretation of Spanish shall not exceed: Rates of Services for interpretation of Spanish shall not exceed:  $50 per hour Certified;  $40 per hour Registered;  $25 per hour Non-Credentialed

32. Rule 42 Section 7(a): Compensation rates for services provided by spoken foreign language interpreters for languages other than Spanish shall not exceed $75 per hour. **If the court finds that these maximum rates are inadequate to secure the services of a qualified interpreter in a language other than Spanish, the court shall make written findings regarding such inadequacy and determine a reasonable maximum rate for a qualified interpreter. Interpreter Compensation for Languages other than Spanis h

33. Maximum Daily Rates for Interpreters Regardless of Language Rule 42 Section 7 (a): Maximum rates shall not exceed: $500 per day Certified; $500 per day Certified; $400 per day Registered; $400 per day Registered; $250 per day Non-Credentialed $250 per day Non-Credentialed

34. Appointment Orders Sample appointment orders include one for Rule 13 cases (indigent) and one for all other cases (civil and non-indigent Rule 13 type cases). Sample orders can be found at: http://www.tncourts.gov/programs/cour t-interpreters/resources-interpreters Sample orders can be found at: http://www.tncourts.gov/programs/cour t-interpreters/resources-interpreters http://www.tncourts.gov/programs/cour t-interpreters/resources-interpreters http://www.tncourts.gov/programs/cour t-interpreters/resources-interpreters

35. Invoice Forms/Submission Effective July 1, 2013, no paper invoices will be accepted. All invoices must be submitted online. If the claim is over $200 the judge will have to approve it online prior to the AOC processing the invoice. If the claim is over $200 the judge will have to approve it online prior to the AOC processing the invoice.

36. Contracting with Counties for Interpreter Services Counties may wish to utilize credentialed interpreters on a full-time or part-time basis with reimbursement for those services from the AOC. The rate of compensation shall not exceed, under any circumstances, the rates provided for in this rule. Counties wishing to be reimbursed for these expenses shall contact the AOC, which will determine in what amounts and by what method said reimbursement shall be made. Rule 42 (7)(g) Counties may wish to utilize credentialed interpreters on a full-time or part-time basis with reimbursement for those services from the AOC. The rate of compensation shall not exceed, under any circumstances, the rates provided for in this rule. Counties wishing to be reimbursed for these expenses shall contact the AOC, which will determine in what amounts and by what method said reimbursement shall be made. Rule 42 (7)(g)

37. To assist with court dockets and the efficient and economic use of the limited interpreter resources: 1. Create an LEP docket. 2. Schedule interpreters in the most economical way – if paid for a two hour minimum on a criminal indigent docket, it would be a best practice for judges to ask the interpreter to assist other courts with interpreter issues if the interpreter has not actually interpreted for the two hour minimum. 3. Court staff and administrators are generally the first to interact with the public. Signs and informational packets regarding right to an interpreter and general navigation information about the courthouse can be created and posted. The judges can help create these resources.

38. Title VI of the Civil Rights Act of 1964 Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, (hereinafter Title VI) requires courts receiving federal financial assistance provide meaningful access for LEP (Limited English Proficient) individuals. Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, (hereinafter Title VI) requires courts receiving federal financial assistance provide meaningful access for LEP (Limited English Proficient) individuals. Meaningful access has been defined in August 16, 2010 letter to Chief Justices and State Court Administrators by Assistant Attorney General Thomas E. Perez, Department of Justice (DOJ), as providing qualified interpreters for all court proceedings, free of charge to the parties. Meaningful access has been defined in August 16, 2010 letter to Chief Justices and State Court Administrators by Assistant Attorney General Thomas E. Perez, Department of Justice (DOJ), as providing qualified interpreters for all court proceedings, free of charge to the parties. Title VI regulations provide that “reasonable steps” * must be taken to provide “meaningful access” to LEP individuals. Title VI regulations provide that “reasonable steps” * must be taken to provide “meaningful access” to LEP individuals. *Factors to be considered can be found in DOJ LEP Guidance as published in the Federal Register on August 16, 2000.

39. Cost of Not Providing Meaningful Access Pursuant to Title VI Judicial Complaints Judicial Complaints Federal Lawsuits Federal Lawsuits Appeals Appeals

40. Language Access Plans Noted in DOJ guidelines 67 Fed. Reg. 41,459 (June 18, 2002) Noted in DOJ guidelines 67 Fed. Reg. 41,459 (June 18, 2002) Purpose is to provide equal access to the courts to participants who have a limited ability to speak or understand the English language. Plan notes reasonable steps that are being taken to provide language assistance at no cost to eligible LEP individuals. Purpose is to provide equal access to the courts to participants who have a limited ability to speak or understand the English language. Plan notes reasonable steps that are being taken to provide language assistance at no cost to eligible LEP individuals.

41. Local Language Access Plans Judges in their counties must look to developing local solutions to interpreter needs. Judges in their counties must look to developing local solutions to interpreter needs. 1. Appoint qualified (credentialed if possible) interpreters for court hearings. 2. Note specific languages needs in your jurisdiction and encourage those that speak these languages in their communities to contact the AOC to learn about becoming a credentialed court interpreter. 3. Take reasonable steps to ensure, as possible, that information and vital documents are available in languages other than English as needed. 4. Take reasonable steps to make out-of-court service providers aware that they must provide for language needs of clients coming to them for services.

42. Training of Staff Local judges can assist in making sure that their assigned staff know the local policies and procedures for providing interpreters for LEP individuals for court hearings. Local judges can assist in making sure that their assigned staff know the local policies and procedures for providing interpreters for LEP individuals for court hearings. AOC has created informational cards for judges, clerks and lawyers on interpreters issues. AOC has created informational cards for judges, clerks and lawyers on interpreters issues. Short online video can be required to be watched by staff called “Breaking Down the Language Barrier,” a video training tool provided by the Department of Justice.” http://www.youtube.com/watch?v=qaVKy- 2HWIo&feature=related Short online video can be required to be watched by staff called “Breaking Down the Language Barrier,” a video training tool provided by the Department of Justice.” http://www.youtube.com/watch?v=qaVKy- 2HWIo&feature=related http://www.youtube.com/watch?v=qaVKy- 2HWIo&feature=related http://www.youtube.com/watch?v=qaVKy- 2HWIo&feature=related

43. How to Get all on the Same Page and be Title VI Compliant Support a program or personally present a program to local bar on interpreter issues – educate the attorneys. Support a program or personally present a program to local bar on interpreter issues – educate the attorneys. Make sure your staff and the clerks know how to arrange for and obtain interpreters. Make sure your staff and the clerks know how to arrange for and obtain interpreters. Educate the stakeholders in your area – law enforcement, colleges, DA’s, defense bar, private bar, etc. regarding need for qualified interpreters. Educate the stakeholders in your area – law enforcement, colleges, DA’s, defense bar, private bar, etc. regarding need for qualified interpreters. Get more interpreters interested in becoming credentialed in your area. Get more interpreters interested in becoming credentialed in your area.

44. Questions and Comments