Looking at Others, Reflecting on Ourselves—An Inquiry into the Court Interpreter Systems of the United States and Japan

Our nation's Constitution guarantees personal freedom. Article 8 stipulates that the personal freedom of the people shall be safeguarded; no arrest or detention may be made except by judicial or police agencies in accordance with legal procedures, and no trial or punishment may be imposed except by a court in accordance with legal procedures. Any arrest, detention, trial, or punishment not conducted in accordance with legal procedures may be resisted. Article 16 provides that the people shall have the right of litigation. Based on this article, Grand Justices' Interpretations Nos. 442 and 418 affirm that the people have the right to a fair trial. Interpretation No. 384 previously declared the Statute for the Suppression of Hoodlums null and void because it impeded the transferred person's right to cross-examine witnesses and obstructed the court in discovering the truth.

Court Interpreters Falling Below International Human Rights Standards

Although the Constitution does not explicitly mention that the court should appoint an interpreter for speech-impaired persons, most laws such as the Code of Criminal Procedure, the Code of Civil Procedure, the Military Trials Act, and the Organization of the Administrative Courts mention the use of interpreters, though their legal effects vary. For example, the Code of Civil Procedure mandates the use of interpreters, whereas the Code of Criminal Procedure stipulates that using an interpreter falls within the discretion of the court. In other words, in a criminal case, if a judge discovers that the defendant is speech-impaired, they may still choose not to use an interpreter (for instance, if both the judge and the defendant are fluent in the same dialect).

On November 24, 1993, the United Daily News reported that the Alliance of Citizens with Disabilities stated that amendments to the Code of Criminal Procedure should be promoted, changing "may" to "shall" to implement the use of interpreters. However, this recommendation should also extend to pre-trial arrests, detentions, or searches. On August 26, 1994, the United Daily News recorded that President Ch'en Shui-bien, during his tenure as a legislator, had suggested amending the Code of Criminal Procedure to make the use of interpreters mandatory. Referring to the provisions of the United States and international conventions mentioned in the previous chapter, our country's criminal procedure system's requirements for court interpreters fall below international human rights standards.

Huang Wen-hsiung, President of the Taiwan Association for Human Rights, pointed out in an article published on June 27, 1999, titled "Comments and Recommendations Referring to International Human Rights Standards," that the right of speech-impaired persons to request an interpreter "should include translating the defendant's statements for the court to understand, and translating the proceedings conducted by the court for the defendant to understand. Currently, interpreters in Taiwan's courts usually only translate the defendant's testimony for the judge to understand. This shows that the court defines the role of the interpreter as assisting the judge in investigating the truth of the facts, which does not include assisting the defendant in participating in the trial of the case. Therefore, this Association recommends that Article 99 should be amended to clearly define the role and responsibilities of interpreters during the proceedings."

TAHR's recommendation is synchronized with the current U.S. system. If this standard were followed, the court should use at least two interpreters in criminal cases.

In addition, the association stated that there have been instances where the court required one co-defendant to translate for another, ignoring the obvious conflict of interest between the two defendants. Another common phenomenon is asking the defendant's lawyer to translate for the defendant. TAHR believes that both of the above practices are extremely inappropriate. Therefore, it is recommended that Article 99 of the "Code of Criminal Procedure" be amended to read: "If a defendant cannot fully speak, understand, or read Chinese, the court has a mandatory obligation to provide a free interpreter for the defendant."

Current Status of Court Interpreters in the United States

The U.S. Constitution guarantees individuals the right to due process of law. Due process is prescribed in the Fifth and Fourteenth Amendments to the U.S. Constitution. As U.S. linguistics scholar Roseann Duenas Gonzalez stated, the court interpreter is an instrument for administering justice, ensuring that due process protects language-impaired persons just as it protects anyone else. Because of this, the importance of court interpreters is manifested not only in fact-finding but also in safeguarding the human rights of defendants.

The Fifth and Fourteenth Amendments to the U.S. Constitution and numerous Supreme Court rulings dictate that criminal defendants are entitled to the protection of due process. According to Black's Law Dictionary, "due process of law" is a fundamental right of criminal defendants and an essential element of a fair trial, which includes the defendant's right to be informed of the charges against them, the right to confront accusers, the right to present evidence in their own favor, the right to be informed of their constitutional rights at the earliest stage of criminal proceedings, the right to the assistance of counsel, and the right against self-incrimination, among others.

In summary, the court should appoint an interpreter for a person who does not understand English or is deaf and mute to protect the following constitutional rights:

1. The defendant has the right to be informed of the charges against them (Sixth Amendment).
2. The defendant has the right to confront accusers or witnesses and to present evidence in their favor before the judge and jury (Sixth Amendment).
3. The defendant has the right against self-incrimination (Fifth Amendment).
4. The defendant has the right to the presence of counsel during all custodial interrogations (Sixth Amendment).
5. The defendant has the right to be informed of their constitutional rights at the earliest criminal stage.

These fundamental human rights also apply to foreigners. Another constitutional issue concerning language-impaired defendants relates to their competence to stand trial, the standard being whether the language-impaired person has a sufficient level of comprehension to communicate with their attorney and whether they can understand the criminal proceedings brought against them. Furthermore, failing to provide an interpreter when one ought to be provided may also violate the Fourth Amendment of the U.S. Constitution. The Fourth Amendment protects people against unreasonable searches and seizures. A search that might otherwise be illegal can become legal through the consent of the party concerned, but such consent must be given voluntarily and with full understanding by the person being searched. The scope of the search must be limited to the scope of consent. Without proper translation, the defendant cannot fully understand why they are being searched and thus cannot voluntarily give consent. In other words, whether such consent is valid is open to question.

Although the U.S. Constitution guarantees the aforementioned rights to the people, the United States is a multilingual and multiethnic country; as of 1990, 12.6% of people still did not speak English at home. Prior to 1978 in the United States, the use of court interpreters was a matter of judicial discretion rather than a mandate, and the quality of translation could not be assured. Up until 1978, only one federal court ruling stipulated that if a defendant was indigent and language-impaired, the court must notify the defendant of their right to request an interpreter. The aforementioned constitutional rights of language-impaired defendants were not secured until the U.S. Congress passed the Court Interpreters Act in 1978.

In appeals cases where a defendant is a non-English speaker and the lower court failed to appoint an interpreter, the U.S. Federal Courts of Appeals will consider the following issues:

1. Whether the defendant has counsel, and if so, whether the defendant is able to communicate with counsel.
2. Whether the non-English-speaking defendant has the assistance of counsel, and if so, whether the defendant can discuss the case with counsel.
3. Whether the defendant has sufficient English proficiency to understand the testimony heard, the charges, and the rights available, or whether their understanding of any part of the proceedings is significantly limited.
4. Whether the defendant understood and was able to answer questions during the examination.
5. Whether the defendant informed the trial court that they needed an interpreter to understand the conduct of the entire criminal proceeding, or whether the trial court should have understood that the defendant's comprehension of the trial was significantly limited due to a language barrier.
6. Whether the indictment or other important documents were translated into a language understood by the defendant.
7. Whether the defendant was indeed prejudiced in their rights because they could not understand any part of the proceedings.
8. Whether the defendant knowingly and voluntarily waived the opportunity to use an interpreter.

In cases where an interpreter was provided, the Federal Courts of Appeals will review the following issues to ensure that the criminal proceedings are fundamentally fair:

1. Is the interpreter a certified or qualified interpreter?
2. Is the interpreter competent and impartial?
3. Is the interpretation generally accurate?
4. Did the defendant timely notify the court of the interpreter's deficient qualifications or lack of impartiality; did the defendant make a timely objection to the lack of accuracy in translation?

Additional factors the appellate court may consider include the defendant's length of stay in the United States, the nature of their work in the U.S., social circumstances, education level, intelligence, and immigration status.

The U.S. Court Interpreters Act

In 1978, the U.S. Congress passed the "Court Interpreters Act," which prescribed circumstances requiring the mandatory use of interpreters. Section 1827(d) of the Act stipulates that in criminal actions or civil actions instituted by the United States, if the presiding judicial officer determines that a party or witness speaks only or primarily a language other than the English language or is hearing-impaired (suffering from a speech or hearing impairment) so as not to comprehend proceedings or communicate with counsel or the presiding judge, the presiding judicial officer shall utilize a certified interpreter. If no certified interpreter is available, the judge shall utilize a competent interpreter.

Gonzalez pointed out two key points in enacting the "Court Interpreters Act":

1. The Act first recognizes the need and right of the defendant to understand the proceedings and communicate with their counsel, thereby enabling them to fully participate in the defense of their own case.
2. The Act recognizes the demand for translation quality and the implementation of an interpreter certification system. This provision increases public awareness of the importance of the interpreter's role, thereby safeguarding the fundamental rights of language-impaired persons.

Considering Rule 28 of the "Federal Rules of Criminal Procedure," which provides that the court may select, appoint,... an interpreter, the power to decide on the use of an interpreter still rests in the hands of the judge. If the presiding judge determines that a party or witness does not understand English or is deaf and mute, such that they cannot understand the proceedings and thus cannot communicate with their lawyer or judge, the judge must use an interpreter. In other words, determining whether a party or witness does not understand English or is deaf and mute is a judicial function.

It should also be noted that the 1978 Act tended to consider consecutive interpretation as the rule, while using simultaneous and summary interpretation as exceptions. The 1988 Act, however, adopted simultaneous interpretation as the rule and consecutive interpretation as the exception, while summary interpretation was omitted entirely. The 1988 amendment essentially declared summary translation unsuitable for judicial interpretation, thereby reinforcing the basic principles of the original act. However, the Los Angeles Superior Court Interpreter Manual in the United States also stipulates that for general discussions between judges and lawyers regarding general procedures, or for lengthy and complex expert testimony where summary translation is clearer and faster than simultaneous interpretation, summary translation may be used upon the defendant's request and with the consent of counsel and the judge. Whether summary translation should be permissible under special circumstances is well worth studying.

Article 96 of our country's "Code of Criminal Procedure" stipulates that a defendant has the right to request the court to make continuous statements. However, there is no provision as to whether a language-impaired defendant may request the court to permit an interpreter to make continuous statements on their behalf.

Provisions of International Conventions on Court Interpreters

Multiple international conventions also contain protective provisions for language-impaired persons. Article 7 of the Universal Declaration of Human Rights states that all are equal before the law and are entitled without any discrimination to equal protection of the law. Article 10 also states that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal. Article 14 of the International Covenant on Civil and Political Rights likewise provides that everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing; (c) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (d) To examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) To have the free assistance of an interpreter if he cannot understand or speak the language used in court. Article 6, Paragraph 2 of the European Convention on Human Rights contains identical provisions.

Provisions of this kind already existed in the American Declaration of Human Rights. Article 8 of the American Convention on Human Rights likewise provides that a speech-impaired person who cannot use the language prescribed by the court has the right to request the court to provide a free interpreter.

From the aforementioned conventions, we learn that for a speech-impaired defendant, the use of an interpreter is an indispensable element of a fair trial. For any nation, this is a mandatory obligation. As scholar Philip Jessup stated, these fundamental rights originate from the individual, not the state. The state certainly cannot negate the fundamental human rights of the speech-impaired through the concept of sovereignty; that is, the speech-impaired have the right to demand the use of an interpreter.

California Court Rules on Interpreters in the United States

The United States attaches great importance to court interpreters and holds high standards for their competence and professional ethics. According to Rule 984.4 of the California Court Rules for Interpreters, professional interpreters should demonstrate the following:

1. Professional qualifications: Interpreters shall accurately and completely express the competence, training, and relevant experience they possess.
2. Complete and accurate interpretation ability: Interpreters shall, to the best of their ability and judgment, achieve accurate interpretation without embellishing, omitting, or modifying the source language. When interpreting for institutional groups, interpreters should translate everything discussed during the process; when interpreting for witnesses, they should accurately translate all contents of the testimony.
3. Impartiality and avoidance of conflicts of interest: Interpreters shall maintain impartiality, adopt a neutral attitude, and suppress any prejudiced behavior or demeanor. In addition, interpreters must disclose to the judge and parties all actual and apparent conflicts of interest; any situation that affects the interpreter's subjectivity will constitute a conflict of interest. Conflicts arise when the interpreter is familiar with or associated with a witness or party, or when the interpreter has a stake in the outcome of the judgment. Interpreters should also refrain from any biased behavior and may only comment on related matters after the proceedings have concluded.
4. Confidentiality: Interpreters shall not disclose confidential communications between trial counsel and clients.
5. Provision of legal advice: Interpreters shall not provide any legal advice to witnesses or parties, and are also prohibited from recommending lawyers or law firms.
6. Professional relationships: Interpreters shall maintain neutral and professional relationships with court personnel, lawyers, jurors, parties, and witnesses.
7. Continuous professional learning and responsibility: Interpreters shall maintain and enhance interpretation skills and knowledge of relevant legal procedures through continuous learning, pursuing higher standards of interpretation performance.
8. Assessment and reporting of bottlenecks in interpretation performance: Interpreters shall constantly evaluate their own interpretation capabilities. When harboring reservations about their competence to perform duties, interpreters should immediately report to the court or other relevant authorities.
9. Responsibility to report ethical breaches: When any circumstance prevents an interpreter from complying with the laws governing court and legal translation, these rules, or other official policies, the interpreter shall report to the court or other relevant authorities.

A Record of Court Interpretation in Japan

◎Ch'ü Wen-san / Lecturer, Department of Japanese Language and Culture, Tamkang University

On the afternoon of August 25, 2004, the author went to the Osaka District Court to observe a trial session arranged with an interpreter. Like Taiwan, based on the principle of open trials, anyone can go to court to observe trials. However, if one wishes to observe a case arranged with an interpreter, they can call the court's "Trial Administration Office" in advance to inquire about relevant trial dates, or check the daily trial schedule list at the court entrance lobby, which details the names of judges or presiding judges, start and end times, case numbers and names, trial stages, and clerk names. Criminal cases also publish the defendant's name; if it is a non-Japanese name, one can roughly deduce that an interpreter has been arranged (in Taiwan, regardless of civil or criminal litigation, defendant names do not appear on trial schedules, making it impossible to discern whether a foreign language interpreter may be arranged).

The trial session observed by the author was in Courtroom 605, concerning a case of violating the Immigration Control and Refugee Recognition Act. The defendant was a Chinese woman in her 50s who farmed in Fuqing County, Fujian Province, in her hometown before going to Japan; the interpreter was a Taiwanese woman who stayed to work after studying in Japan, with over 10 years of experience as a court interpreter.

Before the court session, because the defendant was in detention with handcuffs on both wrists, she was brought into the courtroom by a male and a female correctional officer. The officers had her sit down and removed the handcuffs. Through defense counsel and the interpreter, the clerk explained the interpretation method and the use of communication equipment to the defendant, and inquired whether the defendant was willing to accept the interpretation method. After the defendant agreed, the bailiff tied a receiver around her waist and put headphones on her, while the interpreter, carrying a transmitter, tested the communication status via a wireless microphone.

Subsequently, the judge entered the courtroom promptly at 1:20 PM. The bailiff shouted "All rise," and everyone stood up to welcome the judge. The judge walked up to the bench and bowed, and everyone returned the bow before sitting down. The judge then declared the court session open. First, the judge verified the interpreter's identity, but to protect the interpreter, the judge did not clearly state her name and address, only asking, "As recorded here (referring to the documents)?" Next, the interpreter took an oath: "I swear to translate honestly relying on my conscience. Interpreter" (the interpreter's oath translated by the author). During the oath, she did not state her own name either. Upon completing the oath, the judge had the defendant stand up and come forward through the interpreter to undergo the trial. Before the interrogation, the judge instructed the interpreter to explain to the defendant that she was an interpreter appointed by the court and had just sworn to translate honestly (during investigation or detention, prosecutors, police, and lawyers also take care not to state the interpreter's name in front of the suspect or defendant or let the other party see the interpreter's signature on the record, and observe whether the interpreter has been threatened or bribed). The judge also reminded the defendant to speak up anytime if the headphone reception was poor.

The observed trial proceedings are categorized below into five major parts, with detailed procedures for each part summarized as follows. [*Note: Whether certain procedures are conducted depends on actual circumstances; the case observed by the author was straightforward and the defendant confessed, so these procedures did not take place.]

(1) Opening Proceedings

1. Judge declares the court open
2. Judge verifies the interpreter's identity
3. Interpreter takes the oath
4. Interpreter explains their identity and the preceding oath to the defendant
5. Judge verifies the defendant's identity
6. Prosecutor reads the indictment
7. Judge informs the defendant of the right to remain silent
8. Defendant's plea regarding the charges in the indictment
9. Defense counsel's statement of opinion

(2) Evidence Examination Proceedings

1. Prosecutor's opening statement
2. Prosecutor requests evidence investigation
3. Defense counsel or defendant's opinion on evidence investigation
4. Prosecutor explains the evidence
5. Prosecutor requests summoning a witness*
6. Defense counsel expresses opinion on the request*
7. Examining witnesses or expert evaluation*
8. Defense counsel offers evidence—questioning the defendant
9. Judge's supplementary questioning of the defendant

(3) Argument Proceedings

1. Prosecutor's closing argument and sentencing recommendation
2. Defense counsel's argument
3. Defendant's final statement
4. Notification of next trial date*
5. Recess

(4) Pronouncement of Judgment

1. Reading the main text (disposition)
2. Stating the reasons

(5) Miscellaneous

1. Explanation of probation
2. Explanation of days of unconvicted detention
3. Explanation of protective supervision*
4. Explanation that costs for public defenders and interpreters are not borne by the defendant
5. Notification of the right to appeal

The parts of the above procedures printed in bold use simultaneous interpretation, while other necessary interpretations are conducted consecutively. Although Article 175 of the Japanese Code of Criminal Procedure simply stipulates that "when a person not proficient in the national language makes a statement, an interpreter shall translate," the Supreme Court interpreted as early as 1955 that this legal provision includes the meaning "an interpreter must also be used to let the party understand the trial contents" (Supreme Court Criminal Collection Vol. 9, No. 2, p. 282). Therefore, the role of court interpreters in Japan is not only to assist judges in conducting trials smoothly but also to safeguard the defendant's right to a defense. In actual operation, except for statements by the judge and defendant, the prosecutor's questioning, defense counsel's cross-examination, and witness testimonies are fully interpreted throughout. However, some interpreters have reported encountering judges who instructed them to translate only the general meaning or parts of it, reflecting a disregard for defendants' human rights.

In fact, the first page of the Court Interpreter Manual states that the scope of interpretation must follow the judge's instructions (General Secretariat of the Supreme Court Criminal Bureau 2002:1). However, summary interpretation is generally used only for discussions between judges and prosecutors or defense counsel; after the discussion concludes, the judge personally summarizes the general idea or key points and speaks them out for the interpreter to translate. Testimony-related parts must be consented to by the parties.

Overall, the judge directed the proceedings very rigorously and questioned the defendant with great meticulousness. Midway, the judge twice confirmed with the defendant whether the headphone reception was good, and the interpreter was quite competent. When questioning the defendant, the judge asked, "What was the 'opportunity' (Japanese) that brought you to Japan?" Undoubtedly, the judge wanted to know the defendant's original motivation or chance for going to Japan, but the defendant did not understand the Chinese translation of the Japanese word "opportunity" rendered by the interpreter. Later, she also did not understand the meaning of "borrowing" translated from the Japanese word "shakkin" (debt). Both times, the interpreter did not arbitrarily provide further explanation; instead, she first reported to the judge that the defendant did not understand the Chinese translations of the Japanese words "opportunity" and "debt." The judge either changed phrasing and instructed the interpreter to re-translate or allowed the interpreter to explain directly to the defendant.

Judicial interpreters must in principle translate every single word spoken by the defendant or witness without arbitrarily explaining or questioning the other party beyond the original conversation; if necessary, they must first obtain the judge's consent. After the defendant finished her final statement, the judge announced a 4-minute recess and went inside to draft the judgment (such simple cases of illegal residence and employment are generally judged on the spot). Before sentencing, the judge handed a copy of the judgment for translation to the interpreter. The prosecutor in this case recommended a 2-year sentence, and the actual sentence delivered was 2 years with a 3-year probation. In addition to clearly explaining the meaning of probation, the judge explained that the Immigration Bureau would immediately handle deportation procedures, meaning the defendant would not have to serve the sentence if she did not commit a crime in Japan within 3 years after deportation (to ensure that foreign defendants truly understand the judgment contents, judges use easy-to-understand vocabulary in the judgment text handed to the interpreter, and during sentencing provide concrete supplementary explanations for legal terms. If judgment is not rendered on the spot, a copy is delivered to the interpreter within 30 minutes before the opening of the sentencing hearing, while requesting the interpreter not to leave the clerk's office before the hearing as much as possible to prevent the judgment contents from leaking). The entire procedure ended at 1:57 PM, 3 minutes ahead of schedule. (This article is based on observed court trial proceedings, interviews with local interpreters and scholars, and reference literature to explain the actual operation of court interpretation in Japan.)