Guidelines for the Use of Foreign Language
Interpreting
and Translating Services in the Court System
I. Memoradum
II. Introduction
Chapter 1: Appointment
of Interpreters
Chapter 2: The Role of
the Interpreter
Chapter 3: Compensation
of Interpreters
Chapter 4: Code of
Ethical Conduct for Court Interpreters
Chapter 5: Interpreter
Certification
TO: Superior Court Judges
District Court Judges
Clerks of Superior Court
District Attorneys
Public Defenders
Trial Court Administrators
Trial Court Coordinators
FROM: Judge Thomas W. Ross
DATE: 25 September 2000
RE: Guidelines for the Use of Foreign Language Interpreting and Translating Services in the Court System
I am pleased to enclose with this memorandum our new "Guidelines for the Use of Foreign Language Interpreting and Translating Services in the Court System." The purposes of these guidelines are (1) to facilitate the efficient use of competent and ethical foreign language interpreters and translators in court proceedings and (2) to provide guidance to districts in fashioning their own local rules regarding interpreting issues.
The Administrative Office of the Courts prepared these guidelines in consultation with the Judicial Branch Foreign Language Advisory Committee, the members of which are listed in the Introduction to the guidelines. We were also able to rely upon interpreting materials developed by the National Center for State Courts, the Minnesota Supreme Court Interpreter Advisory Committee, the BERKANA Center for Translation and Interpretation Studies, and several of our own judicial districts.
The guidelines address a number of areas related to foreign language interpreting and translating in the court system, including the following:
Equal access to the courts remains a top priority for the Judicial Branch of North Carolina and the Administrative Office of the Courts and we are grateful for your efforts in seeking to ensure that access. If you have any questions or concerns about these guidelines or foreign language issues generally, please contact Stephanie Scarce, our Foreign Language Project Coordinator, at (919) 715-1672, or via electronic mail at Stephanie.S.Scarce@aoc.state.nc.us.
A. Purpose of Guidelines Manual
This manual contains the guidelines for the use of foreign language interpreting and translating services adopted by the Director of the Administrative Office of the Courts (AOC). The purposes of this manual are as follows:
The AOC encourages each district to adopt local rules governing court interpreting and translating that are consistent with these guidelines. The AOC also recommends that each district centralize interpreting and translating issues with one person or office in the district (or in each county of the district).
B. Resources
In preparing these guidelines, the AOC received valuable input and assistance from the members of the Judicial Branch Foreign Language Advisory Committee, who are as follows:
The AOC also gratefully acknowledges the guidance provided by the following materials:
Finally, the AOC acknowledges the funding provided for the Judicial Branch Foreign Language Services Project by the following:
The points of view and opinions contained within these guidelines are those of the AOC and do not necessarily represent the official positions or policies of the North Carolina State Bar, the Z. Smith Reynolds Foundation, or the United States Department of Justice.
C. Definitions
The following terms will be used throughout this manual:
D. Contact Person
Persons with questions regarding these guidelines, or foreign language issues generally, should contact Stephanie Scarce, the AOC Foreign Language Coordinator. Stephanie may be reached as follows:
Stephanie S. Scarce
Foreign Language Project Coordinator
Administrative Office of the Courts
Post Office Box 2448
Raleigh, NC 27602
Telephone: (919) 715-1672
Fax: (919) 733-1845
Chapter 1: Appointment of Interpreters
A. Appointment of Foreign Language Interpreters Generally
The court has the inherent authority to appoint a foreign language interpreter when, in the discretion of the court, an interpreter is "necessary." State v. Torres, 322 N.C. 440, 443-44, 368 S.E.2d 609, 611 (1988). An interpreter is necessary when a person’s "normal method of communication is unintelligible to those in the courtroom." State v. McLellan, 56 N.C. App. 101, 102, 286 S.E.2d 873, 874-75 (1982). The same principles hold true for the appointment of a translator. See Wise v. Short, 181 N.C. 320, 322-23, 107 S.E. 134, 136 (1921).
In determining whether an interpreter is necessary, the court should ask the non-English-speaking (NES) person open-ended questions requiring elaboration rather than questions requiring a simple "yes" or "no" answer. For example, the court could ask the person about his or her work, education, family, or other similar matters.
B. Locating and Selecting an Interpreter
Any person who, in the discretion of the court, "is competent to perform the duty assumed may be appointed as an interpreter." Torres, 322 N.C. at 443-44, 368 S.E.2d at 611. Again, these same principles hold true for the selection of a translator. See Wise, 181 N.C. at 322-23, 107 S.E. at 136.
To assist the court in making this competency determination, the AOC will maintain a list of interpreters formally certified by the AOC. (See Chapter 5.) Where at all possible, the court should appoint a certified interpreter from this list.
Where a certified interpreter is not reasonably available, or where the NES person would prefer to use an interpreter of his or her own who is not certified, the court in its discretion may appoint an interpreter who does not appear on this list. In determining whether to appoint a non-certified interpreter, factors the court should consider include the nature of the proceeding, the hardship that would be caused by delaying the proceeding until a certified interpreter could be located, and the level of competence of the non-certified interpreter.
In determining whether a non-certified interpreter is competent, court officials should note that being bilingual is not, by itself, indicative of a person’s ability to serve as an interpreter. Interpreting requires specialized knowledge of grammar, vocabulary, legal and other specialized terminology, slang, idioms and dialectal variations. It also requires specialized skills in the areas of memory, comprehension, attentiveness, listening and multi-tasking.
Accordingly, when gauging the competence of a non-certified interpreter, the court should consider the following:
When a certified interpreter is not readily available, the court should avoid (1) acting as an interpreter itself or (2) allowing an attorney or law enforcement officer participating in the case to serve as an interpreter. First, the judge or attorney may not be able to perform his or her duties at the optimum level if he or she is attempting to serve dual roles during the proceeding. Second, serious conflict of interest concerns arise when a judge serves as both fact finder and interpreter, or when an attorney serves as both advocate and interpreter. Similar conflict of interest concerns arise for law enforcement officers serving as court interpreters.
When the language spoken by the person is rare so that there are no interpreters readily available, certified or noncertified, the court may want to contact one or more the following potential resources:
Court officials are, of course, also free to contact the AOC with any other questions relating to foreign language interpreting services.
C. Use of Form AOC-G-107
When appointing and compensating interpreters, the court should use form AOC-G-107 ("Motion, Appointment and Order Authorizing Payment of Interpreter"), a copy of which is included at the end of this chapter. The form has four sections:
Once the court official has approved the payment amount, the court should forward the completed form to the AOC Controller’s Office for payment. Additional important information on the compensation of court interpreters appears in Chapter 3.
D. Removal or Withdrawal of an Interpreter
If the court subsequently determines that an interpreter is not competent, has engaged in misconduct, or is otherwise unable to perform the necessary interpreting services, or that the person does not in fact need an interpreter, the court may in its discretion remove the interpreter. See N.C.G.S. § 8C-1, Rule 604 (1999) ("An interpreter is subject to the provisions of these rules [i.e., the Rules of Evidence] relating to qualification as an expert . . . ."); see also State v. Overton, 60 N.C. App. 1, 36-37, 298 S.E.2d 695, 716 (1982) (explaining that an order appointing an interpreter may "be altered upon a showing of changed circumstances"), disc. rev. denied and appeal dismissed sub nom. State v. Ruviwat, 307 N.C. 581, 299 S.E.2d 652 (1983). Similarly, an interpreter who becomes concerned about his or her ability to interpret in a particular proceeding or for a particular person should inform the court immediately.
E. Oath
Rule of Evidence 604 contemplates that a court interpreter will swear or affirm that he or she "will make a true translation" N.C.G.S. § 8C-1, Rule 604 (1999). Districts may want to adopt a more expansive oath by local rule. For example, a guidebook on interpreting issues published by the National Center for State Courts suggests the following oath:
Do you solemnly swear or affirm that you will interpret accurately, completely and impartially, using your best skill and judgment in accordance with the standards prescribed by law and [the Code of Ethical Conduct for Court Interpreters adopted by the Administrative Office of the Courts], follow all official guidelines established by this court for legal interpreting or translating, and discharge all of the solemn duties and obligations of legal interpretation and translation?
William E. Hewitt, Court Interpretation: Model Guides for Policy and Practice in State Courts 149 (1995).
F. Need for More than One Interpreter
The demands of courtroom interpreting, particularly simultaneous interpreting, may cause an interpreter to tire rather quickly. Accordingly, for lengthy or complex matters, the court may choose to appoint more than one interpreter. The two interpreters then may spell each other as they become fatigued.
As a general rule, the court should consider securing more than one interpreter for any proceeding likely to last for two or more hours. It is also worth noting that even the best interpreters may be able to provide simultaneous interpreting services continuously for only thirty to forty-five minutes.
G. Appointment by Session Rather than By Case
Some districts may choose to appoint a single interpreter for an entire session of court rather than appointing a different interpreter for each case heard during the session that requires an interpreter. For example, some districts now appoint one interpreter to remain available in the courtroom for an entire day or half-day of Criminal District Court. This interpreter assists any indigent defendants or witnesses during the course of the day who need interpreting services. It therefore is unnecessary to delay a case until an interpreter can be located or to pay multiple interpreters for time spent waiting for their cases to be called.
Several districts that regularly experience a high volume of NES persons use this approach. These districts include Districts 4 (Duplin, Jones, Onslow and Sampson), 14 (Durham), 20 (Anson, Richmond, Stanly and Union), 21 (Forysth), 26 (Mecklenburg), and 28 (Buncombe).
Chapter 2: The Role of the Interpreter
A. Pre-Hearing Activities
Where possible, the interpreter should meet with the non-English-speaking (NES) person and his or her attorney prior to the proceeding. This will allow the interpreter to familiarize himself or herself with the NES person’s dialect and manner of speaking. It will also allow the interpreter to clarify the nature of his or her role (in other words, that the interpreter will be present to interpret the proceedings for the party, but is not permitted to advise the party in any way).
Also where possible, the interpreter should determine the type of case in which he or she will be interpreting. This will allow the interpreter to identify and study the specialized terminology that will be used during the proceeding.
B. Courtroom Protocol
The presiding judicial official (for example, the judge or magistrate) governs the behavior of the parties, attorneys, court employees, and other persons in the courtroom. The interpreter therefore should abide by the instructions and rules of the local district and the presiding official at all times. The following policies may, however, provide the interpreter with general guidance:
C. Code of Ethical Conduct
At all times, the interpreter should conduct himself or herself in a manner consistent with the Code of Ethical Conduct. (See Chapter 4.)
D. Suggestions for Court Officials
The following suggestions may be helpful to court officials presiding over hearings in which interpreters are needed:
- The interpreter’s role and purpose is limited to facilitating communication. The interpreter may not provide legal or other advice or assistance to any party.
- The participants in the proceeding should speak directly to one another, not to the interpreter. For example, an attorney should ask a NES witness a question directly. The attorney should not say to the interpreter, "Ask the witness when she saw the defendant." Similarly, the witness should respond directly to the attorney, not to the interpreter.
- The interpreter will render everything that is said in the courtroom completely and accurately. The interpreter will not elaborate on, explain, clarify, add to, or omit information from the original statements.
- The jury should not give any weight to the fact that a party or witness requires the assistance of an interpreter.
- The court reporter should record only the English spoken during the proceeding. In the verbatim transcript of the proceeding, the reporter should indicate when a witness or party is speaking through an interpreter. (Sample transcript pages are included at the end of this chapter.)
Chapter 3: Compensation of Interpreters
A. When the State May Bear the Cost of a Foreign Language Interpreter
The court system is authorized to provide foreign language interpreters at State expense only in those instances when the State is bearing the costs of representation. N.C.G.S. § 7A-314(f), for example, authorizes the court to appoint a foreign language interpreter at Judicial Branch expense in indigent criminal cases where the defendant, or a witness for the defendant, cannot speak or understand English. This statute also authorizes the court to appoint an interpreter for a witness for the prosecution who cannot speak or understand English. The AOC has interpreted this statute in conjunction with various other statutes (for example, N.C.G.S. § 7A-450, N.C.G.S. § 7B-602, N.C.G.S. § 7B-1101, N.C.G.S. § 7B-2000, and N.C.G.S. § 122C-268), to authorize an interpreter at Judicial Branch expense for any party for whom the Judicial Branch is bearing the costs of representation (for example, indigent criminal defendants, witnesses for indigent criminal defendants, witnesses for the State, parties to juvenile proceedings, indigent respondents in involuntary commitment proceedings).
There may be a situation where a person has retained his or her own attorney, but is still entitled to other services, such as the assistance of an interpreter, at State expense. See State v. Boyd, 332 N.C. 101, 107-09, 418 S.E.2d 471, 474-76 (1992) (explaining that "whenever a defendant’s personal resources are depleted and he can demonstrate indigency, he is eligible for state funding of the remaining necessary expenses of representation"; accordingly, the fact that a defendant has "sufficient resources to hire counsel does not in itself foreclose [the] defendant’s access to state funds for other necessary expenses of representation").
There may also be situations where a party appears before a judicial official before any determination of indigency or right to counsel at State expense has been made. For example, at an initial appearance before a magistrate pursuant to N.C.G.S. § 15A-511, the magistrate may not yet know whether the defendant is indigent. The usual practice in this situation is for the magistrate to appoint an interpreter even though a determination of indigency (and entitlement to counsel at State expense) has not yet been made. If the defendant is subsequently convicted, the court can assign the interpreter’s fee to the defendant as costs. See N.C.G.S. § 7A-455 (1999).
B. When the State May Not Bear the Cost of a Foreign Language Interpreter
The Judicial Branch is not authorized to provide interpreters to parties who are required to bear the costs of their own representation (for example, civil and domestic litigants, non-indigent criminal defendants). Because the legislature has not authorized or appropriated funds for these other contexts, it would not be appropriate for the court system to begin paying for these services on its own authority.
The Judicial Branch also is not authorized to provide interpreters for law enforcement matters such as interrogations or bookings. Similarly, the Judicial Branch is not authorized to provide interpreters for use by juvenile court counselors. In these instances, the law enforcement agency or the Department of Juvenile Justice and Delinquency Prevention must bear the cost of the interpreter.
Finally, some persons may waive the services of the interpreter that the court intends to appoint. Some districts require these persons to bear the cost of their own interpreters. This approach is consistent with the rules governing the waiver of a court-appointed sign language interpreter. See N.C.G.S. § 8B-3(b) (1999) ("A deaf person who has waived an interpreter under this section may provide his own interpreter at his own expense . . . .").
Note: The foregoing policies apply to foreign language interpreters only. As a general rule, Chapter 8B of the General Statues and the Americans with Disabilities Act require the court system to provide sign language interpreters at State expense regardless of the financial status of the person needing the interpreter and regardless of the type of case.
C. Rate of Payment
When the Judicial Branch is authorized to bear the interpreting costs, the interpreter is entitled to "a reasonable fee . . . as set by the court." N.C.G.S. § 7A-314(f) (1999). Relying by analogy on N.C.G.S. § 8B-8(a), which governs the compensation of sign language interpreters, reasonable compensation for foreign language interpreters may include, in the court’s discretion, (1) a reasonable hourly fee for services provided and for time spent in court waiting for the case to be called and (2) reimbursement for necessary travel and subsistence expenses pursuant to the reimbursement policies that apply to State employees.
The court in its discretion determines the specific rate of payment for interpreters. Rates for Spanish court interpreters in North Carolina currently range from $25.00 per hour to $35.00 per hour, depending on the district. The court may, however, want to consider increased rates of payment in certain circumstances. For example, the court may want to consider a higher rate of compensation if one or more of the following is true:
Some interpreters may seek a guaranteed minimum payment, particularly if they must travel a considerable distance to the courthouse. For example, an interpreter may request that he or she receive payment for at least two hours of work even if he or she is actually used only for one-half hour.
Similarly, an interpreter may request some fixed minimum payment if the proceeding is canceled on short notice. In doing so, the interpreter is seeking to guard against a loss of revenue that may result from situations where the interpreter (1) accepts courtroom work, (2) declines a subsequent offer because it would conflict with the time set aside for the courtroom work and therefore (3) is left without any work when the court proceeding is canceled.
Once the court has determined the interpreter’s compensation, the interpreter and the court should use form AOC-G-107 ("Motion, Appointment and Order Authorizing Payment of Interpreter") to compensate the interpreter. Once the appropriate court official has signed the form, the court should forward it to the AOC Controller’s Office for payment. (Chapter 1 contains more information on the use of form AOC-G-107.)
The AOC recommends that each county or district centralize the processing of interpreter invoices with a particular employee or a particular office. This will allow the court to ensure that (1) no changes are made to the form after the court signs it and (2) interpreter compensation is generally uniform in the county or district.
D. Prohibition on Double Billing
An interpreter may not (1) bill twice for the same period of time or (2) bill both the State and the indigent non-English-speaking person. The following two examples may serve to illustrate these prohibitions:
E. Assigning the Interpreter’s Fee as Costs
The court may assess the costs of a foreign language interpreter against an indigent criminal defendant if the defendant is found guilty. See N.C.G.S. § 7A-455 (1999). Some districts employ a bipartite approach, requiring the defendant to pay (1) $20.00 toward the cost of the interpreter if the defendant pleads guilty or (2) the entire cost of the interpreter if the defendant pleads not guilty and is subsequently convicted.
Note: The court should never tax the cost of a sign language interpreter (or other accommodation) to a person who is deaf or hard of hearing. Even where the services were provided for a criminal defendant who was convicted, the State must bear the cost.
F. Cost Saving Suggestions
If possible, the court should place the case needing the interpreter near the top the court’s calendar. This will help reduce costs since interpreters are typically compensated for the time they spend waiting in the courtroom as well as the time they are actually interpreting.
Additionally, as noted in Chapter 1, some districts achieve economies of scale by appointing interpreters for entire sessions of court rather than appointing a different interpreter for each case heard during the session that requires an interpreter. For example, some districts now appoint one interpreter to remain available in the courtroom for an entire day or half-day of Criminal District Court. This interpreter assists any indigent defendants or witnesses during the course of the day who need interpreting services. It therefore is unnecessary to compensate multiple interpreters for time spent waiting for their cases to be called.
G. Interpreter Fees in Cases where the State Is Not Authorized to Pay
In civil and domestic cases where an interpreter is necessary, the court may appoint an interpreter on its own motion and require the parties to bear the cost of the interpreter. Rules of Evidence 604 and 706 provide the court with this authority.
Rule of Evidence 604 provides that interpreters are "subject to the provisions of [the Rules of Evidence] relating to qualification as an expert." N.C.G.S. § 8C-1, Rule 604 (1999). Rule 706(a) provides that the court may appoint an expert "on its own motion" and "of its own selection." N.C.G.S. § 8C-1, Rule 706(a) (1999). Reading Rules 604 and 706 together, a court may, on its own motion, appoint an interpreter of its own selection.
Pursuant to Rule 706(b), an interpreter appointed by the court in this fashion is "entitled to reasonable compensation in whatever sum the court may allow." N.C.G.S. § 8C-1, Rule 706(b) (1999). Where there are no "funds which may be provided by law" to pay for the services of the interpreter, "the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs." Id. In other words, in civil actions, domestic actions, and other proceedings where the person must bear the cost of his or her own representation, the court may order the person to bear the cost of the interpreter.
The court could also rely on these rules to remove an interpreter retained by a party. Specifically, if the court determines that the interpreter provided is not adequate, the court could refuse to qualify the interpreter under Rule 604. The court then could appoint an interpreter of its own choosing pursuant to Rule of Evidence 706.
H. Special Rule for Chapter 50B Domestic Violence Proceedings
Domestic violence proceedings under Chapter 50B of the General Statutes are civil matters for which the parties must bear their own costs of representation. Accordingly, absent special direction from the General Assembly, the court system would not be authorized to provide foreign language interpreters at State expense in these proceedings.
During the 2000 short legislative session, the General Assembly authorized the Judicial Branch to begin providing foreign language interpreters at State expense to indigent NES parties in Chapter 50B domestic violence actions. The AOC has established a separate account for the payment of interpreters in Chapter 50B matters. Accordingly, the court should write "CHAPTER 50B" in large letters at the top of form AOC-G-107 before forwarding it to the AOC Controller’s Office for payment.
Chapter 4: Code of Ethical Conduct for Court Interpreters
A. General Conduct and Responsibilities
B. The Proper Role of the Interpreter
C. Impartiality and Confidentiality
D. Translation Services
Note: This Code of Ethical Conduct for Court Interpreters is based on a recommended model code set forth in William E. Hewitt, Court Interpretation: Model Guides for Policy and Practice in State Courts (1995).
Chapter 5: Interpreter Certification
A. Certification of Foreign Language Interpreters Generally
In order to receive formal certification as a foreign language interpreter from the Administrative Office of the Courts (AOC), a candidate must
The final determination of whether to certify a particular applicant rests with the AOC Director.
B. Certification Examination
The AOC will, as it deems necessary, administer court interpreter certification examinations developed by the State Court Interpreter Certification Consortium. The Director of the AOC will determine how often, at what locations, and for what languages the AOC will administer these examinations. The Director will also determine those persons eligible to take the examinations.
Once a person has taken a certification examination, the AOC will work with the Consortium staff to analyze and verify the test results and determine which persons achieved a passing score. The final determination of whether a person has earned a passing score rests with the Director.
In addition to the practical skills examination developed by the Consortium, the AOC may require applicants to pass a written examination on legal terminology, court system structure and ethical principles.
C. Good Character and Fitness
In determining whether an applicant has demonstrated good character and fitness, the AOC may rely on a criminal record check of the applicant and on recommendations from court officials and others who have known and worked with the applicant. The final determination of whether a person has demonstrated good character and fitness rests with the Director.
D. Directory of Certified Interpreters
The AOC will publish, and periodically update, a list of those persons certified as court interpreters by the AOC. The list will include the name, address and telephone number of each certified interpreter. The AOC will make the list available on its website (www.nccourts.org) and in hard copy form.
E. Removal of Interpreter from Certified List
In the event of criminal behavior, ethical misconduct, or other factors indicating a person’s unfitness to serve as an interpreter, the AOC Director, in his or her discretion, may temporarily suspend or permanently revoke an interpreter’s certification. The determination of whether and when to reinstate a suspended certification rests with the AOC Director.
F. Mentorship, Performance Evaluation and Certification Renewal
The AOC may, in the future, institute a mentorship or similar performance enhancement and evaluation process for court interpreters. The determination of whether and when to institute such a process rests with the AOC Director.
Similarly, the AOC may choose to implement a certification renewal process at some point in the future. Again, the AOC Director will determine whether and when to institute a process of this sort. This program may require, for example, an application for certification renewal, post-certification orientation and training sessions, a follow-up criminal record check, and a renewal fee.