APPENDIX TO THE FINAL REPORT OF THE
PENNSYLVANIA SUPREME COURT COMMITTEE ON
RACIAL AND GENDER BIAS IN THE JUSTICE SYSTEM
VOLUME I
CHAPTER 1
LITIGANTS WITH LIMITED ENGLISH PROFICIENCY
Download as Adobe Portable Document File
(large file 9 megabyte)
Table of
Contents
Page
Languages
Spoken at Home County by County Breakdown 1990 Census................................ 3
Requests
for Interpreters 1st Judicial District 2001................................................................... 8
Bibliography............................................................................................................................
12
Community
Agency Survey......................................................................................................
16
Pennsylvania
Association of Court Management Survey............................................................
40
Philadelphia
Court Interpreter Services Study...........................................................................
43
Philadelphia Court
Interpreter Services Study: Appendices 1-5...............................................
73
Download (large 3.3 megabyte file) as Adobe
Portable Document File
Testimony
of Anna Arias..........................................................................................................102
Transcripts of Public Hearings
Before Race and Gender Bias Committee
Links to Witness Testimony Relating to Limited
English Proficiency Litigants
Go to Pennsylvania
Supreme Court Website for full Racial and Gender Bias Report, Appendix Volumes
and Transcripts.
Appendix Material is in Volume 1
(130 megabyte file)
Go to
Friends of Farmworkers Testimony To Committee
on Racial and Gender Bias in the Judicial System December 2000
Go
to Friends of Farmworkers Limited English Proficiency Links
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY
18
CHAPTER 1
LITIGANTS WITH LIMITED ENGLISH PROFICIENCY
INTRODUCTION
Due process is a core
value of the American judicial system, ensuring that
every litigant and
criminal defendant receives a fair hearing that is based on
the merits of his or
her case and presided over by an impartial judge. No
one should be put at
a disadvantage in court by reason of race, ethnicity,
or gender. Yet due
process, along with the basic fairness of the Pennsylvania
court system is
jeopardized if litigants with limited English proficiency
(LEP) are unable to
have access to competent interpreters and other
language assistance.1
The Census Bureau estimates that more than 970,000
persons over age 4 in Pennsylvania speak a language
other than English at home and that nearly 370,000…
do not speak English “very well.”
Every day, LEP
persons appear as parties and witnesses in Pennsylvania
court proceedings or
call upon the courts for help. These persons may not
be able to read or
comprehend the court papers given to them. They may
not be able to engage
in more than superficial conversation with court staff.
They may struggle to
present their claims or defenses without a sound
understanding of the
English language or, in many cases, American legal
culture. While
interpreters are generally provided to LEP criminal
defendants, the
interpreters are not certified by the Commonwealth and
may not be qualified
to interpret court proceedings. In civil cases, LEP
parties often must
either fend for themselves or rely upon unskilled and
untrained friends or
relatives who are struggling to understand and explain
what is being said.
Increases in the
number and proportion of foreign-born U.S. residents in
the past two decades
suggest that ethnic, cultural, and linguistic diversity
will continue to
challenge the courts. The Commonwealth now has
substantial
communities of recent immigrants. Latinos are the largest group
of people with
limited English proficiency. Puerto Ricans began arriving
in the 1920s,
followed by people from Mexico, El Salvador, Guatemala, the
Dominican Republic,
Venezuela, Colombia, and elsewhere. The Census
Bureau estimates that
more than 970,000 persons over age 4 in
Pennsylvania speak a
language other than English at home and that nearly
370,000 of these
individuals do not speak English “very well.”2 As a
consequence,
Pennsylvania courts in recent years have requested oral
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY (Introduction Continued)
19
language
interpretation services in more than 50 different languages and
dialects.3
Upgrading
the capacity of the Pennsylvania judicial system to
provide justice for
all, regardless of English language ability, should be a
priority for the
Commonwealth.
Focus of Inquiry
The Pennsylvania
Supreme Court Committee on Racial and Gender Bias in
the Justice System
(Committee) decided early in its deliberations to focus on
several of the
following issues involving LEP litigants:
• Examining the scope
of responsibility of courts and administrative
agencies to provide
oral interpretation services to persons in a variety of
judicial and
administrative proceedings. In addition to providing
interpretation
services in formal administrative hearings and criminal
defense proceedings,
the courts must consider whether to provide
interpreters to
people appearing as witnesses in criminal cases; witnesses
in civil cases;
parties in civil cases; and jurors. Also, interpretation
services may be
required by offenders who are ordered into court
supervision or court
programs.
• Determining the necessity
of adopting a system for certification of
competency in oral
court interpretation.
• Identifying practical
procedures for establishing systems for certification
of competency in oral
court interpretation, including interim transitional
procedures.
• Identifying barriers
to the availability of qualified oral language
interpreters and
means for overcoming those barriers.
• Determining the
necessity for written translation of documents and
establishing
procedures for providing accurate translations.
• Identifying other
issues to be addressed, including the impact of cultural
issues within LEP
communities and other immigrant, refugee, and
migrant communities.
• Identifying the
administrative mechanisms for accomplishing these goals.
Specific Research
Methods
The Committee sought
data and guidance through four primary avenues
of inquiry: 1)
surveys of community agencies and court administrators;
2) testimony from the
six public hearings it conducted around the
Commonwealth; 3) the
personal professional experiences of The Litigants
Work Group members;4 4) the experiences of other states and published
literature and
studies;5 and 5) an analysis of
pertinent law.
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY
20
SYNOPSIS OF FINDINGS
As immigrant,
migrant, and refugee populations grow in many
Pennsylvania
counties, fair access to the judicial system remains a
significant problem
for those with language and cultural differences.
Despite the obvious
need for culturally sensitive oral interpretation and
written translation
assistance to LEP persons, Pennsylvania has no
statewide system for
providing interpreter services in court proceedings.
Further, Pennsylvania
has no system for certifying the competence of
interpreters in any
language, including those languages for which court
interpreter
certification programs have been established in neighboring
states and the
federal courts. The absence of both undermines the ability of
the Pennsylvania
court system to determine facts accurately and to dispense
justice fairly.
Many Pennsylvania
courts provide interpreters only on an ad hoc basis,
allowing untrained
and incompetent interpreters to translate court
proceedings. Many
individuals are pressed into service, including relatives
and friends of people
in court proceedings. Their proficiency in a language
other than English,
however, does not mean they have the skills and
training to work as
interpreters. Pennsylvania has no system for training
judges, court
officials, or attorneys in issues related to utilization of
interpreters. Only
when an LEP person is a defendant in a criminal case do
the Pennsylvania
courts consistently recognize an obligation or duty to
provide
interpretation services. Many litigants, particularly in civil matters,
are unable to obtain
language assistance. The inadequacy of the services
clearly hinders
courts in their ability to adjudicate disputes justly.
Pennsylvania’s First
Judicial District in Philadelphia County has taken a
lead role in addressing
these problems by initiating a formal court
interpreter system.
Although Philadelphia County has not yet established
certification
procedures, it has developed a model that may prove helpful
elsewhere in the
Commonwealth. Philadelphia’s system is described in more
detail later in this
chapter.
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY
21
LEGAL
ANALYSIS 6
When people are unable to
comprehend or participate fully in court
proceedings in which they are
parties, fundamental notions of justice and
fairness are called into
question. Substantial legal authority exists to
support the proposition that
the U.S. Constitution, and the Civil Rights Act
of 1964, 42 U.S.C. §2000d et seq., obligate the states to
provide
comprehensive language
services to make the court system accessible to
LEP persons. This obligation
is particularly compelling when LEP
individuals are forced to
participate in court proceedings.
The well-established rights of
a criminal defendant to a fair trial may be
compromised when a court
conducts proceedings in a language not well understood
by the defendant. The right to
an interpreter in criminal matters
is based upon the Fifth, Sixth
and Fourteenth Amendments to the U.S.
Constitution. If the state
fails to provide an interpreter when one is needed,
the situation jeopardizes the
broad Fifth Amendment right not to be
deprived of life or liberty
without due process of law; the more specific
Sixth Amendment rights of a
criminal defendant to counsel, to a speedy
trial, to be informed of the
charges against him, and to confront adverse
witnesses; and the Fourteenth
Amendment rights to due process and equal
protection of the law. In
concluding that failure to provide an interpreter
undermines the rights of a
defendant to confront witnesses and to testify
on his own behalf, for
example, the First Circuit noted that “no defendant
should face the Kafkaesque
specter of an incomprehensible ritual which
may terminate in punishment.” United States v. Carrion, 488 F.2d 12, 14
(1st Cir. 1973). Indeed, the
Pennsylvania Supreme Court previously has
recognized the importance of
interpreters. See
Commonwealth v. Pana,
469
Pa. 43, 364 A.2d 895 (1976).
(The conviction was reversed after the trial
judge improperly refused to
permit the defendant to testify in Spanish
through an interpreter,
thereby interfering with his right to testify.)
Language issues arise in
various ways throughout the criminal process. The
right to counsel may be denied
when a defendant and his or her counsel
cannot communicate clearly and
lack an interpreter to bridge language
differences. The difficulty
may begin at the time that counsel is appointed or
retained, and may continue
throughout the pretrial, trial, and post-trial
process. When a written
translation of the charging documents has not been
made, the defendant may not be
adequately informed of the charges against
him and may thus be unable to
participate in his own defense. United States
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY (Legal Analysis
Continued)
22
v. Mosquera, 816 F.Supp. 168
(E.D.N.Y. 1993). Also, a defendant who is
not provided with
simultaneous interpretation of witness testimony during
trial may lose the
right to cross-examine the witness effectively. Whenever
language services are
needed, the failure to provide interpretation or
translation by
individuals with sufficient language skills and training may
create an issue as to
whether the right has been adequately protected.
The Federal Court
Interpreters Act, 28 U.S.C. §1827, mandates for all
federal criminal
proceedings the use of certified or otherwise qualified
interpreters for
people who primarily speak a language other than English.
Many states have
enacted similar statutes, rules, or state constitutional
amendments mandating
the appointment of court interpreters for LEP
defendants in
criminal cases.
Constitutional
principles can also apply to civil and administrative
proceedings, although
precedent in these areas is less firmly established
than in criminal
cases. Fundamental due process and equal protection
rights grounded in
the Fifth and Fourteenth Amendments are implicated
when an individual is
threatened with loss of property interests in court, or
is denied access to
court for enforcement of legal rights on the grounds of
his or her ability to
speak or write well in English. (See i.e., Gonzalez v.
Commonwealth,
Unemployment Comp. Bd. of Review, 39 Pa. Cmwlth. 70,
395 A.2d 292 (1978).)
(The dissent found that failure to provide
simultaneous
interpretation of adverse witness testimony during an
administrative
hearing deprived claimant of equal protection and due
process.)
Non-criminal proceedings can adjudicate critical legal matters
such as protection
from abuse, child custody, support, and divorce;
dependency,
termination of parental rights, and adoption; eviction and
housing or health
code enforcement; mortgage foreclosure; and eligibility
for unemployment
compensation, worker’s compensation, mortgage
assistance, and
welfare benefits. Claims for damages represent potential
gain or loss of money,
property, and assets. Concerns should be heightened
when an LEP defendant
is involuntarily summoned to court and may suffer
loss of significant
property or other interests. Fundamental fairness suggests
that when important
interests are at stake, the court should level the
playing field, at
least to the extent of permitting both sides to understand
and participate in
proceedings without regard to English language ability.
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY (Legal Analysis Continued)
23
In 1997, the American Bar Association also adopted
a resolution that “recommends that all courts be
provided with qualified language interpreters in
order
that parties and witnesses…may fully and fairly
participate in court proceedings.”
—ABA Resolution, Rep. No 109 (adopted Aug. 1997)
Some jurisdictions
have mandated the provision of interpreters for LEP
litigants in civil
court proceedings. For example, interpreters are required in
federal civil
proceedings in which the United States is the plaintiff,
including bankruptcy
matters. 28 U.S.C. § 1827(d). A growing number of
states also mandate
by statute or by court rule that interpreters be provided
in certain civil
cases. Cal. Code Civ. Proc. §116.550; Ind. Code Ann.
§ 34-1-14-3 (1998);
KS ST § 60-243 (2000); Mass. Ann. Laws ch. 221,
§92 (2001); Minn.
Stat. §546.42 (1996); Or. Rev. Code § 45.275 (1996);
Utah Code of Judicial
Administration Rule 3-306 §12(A); Va. Code Ann.
§ 8.01-384.1:1 and
Wash. Rev. Code § 2.43.02 (1996). In 1997, the
American Bar
Association also adopted a resolution that “recommends that
all courts be
provided with qualified language interpreters in order that
parties and witnesses
with no or limited command of English…may fully
and fairly
participate in court proceedings.” ABA Resolution, Rep. No 109
(adopted Aug. 1997).
The failure of courts and administrative agencies to
provide qualified
interpreters to persons with limited English proficiency
can also violate
federal civil rights laws. Section 601 of Title VI of the Civil
Rights Act of 1964,
42 U.S.C. § 2000d, states: “No person in the United
States shall on the
ground of race, color or national origin, be excluded
from participation
in, be denied the benefits of, or be subjected to
discrimination under
any program or activity receiving Federal financial
assistance.” Language
ability has been recognized as a proxy for national
origin in
discrimination cases. (See i.e., Gutierrez v. Municipal Court of
S.E. Judicial
District,
838 F.2d 1031 (9th
Cir.
1988), vacated
as moot,
490
U.S. 1016 (1989).)
Regulations implementing Title VI bar national origin
discrimination
including the unintended disparate impact of seemingly
neutral policies. Lau v. Nichols, 414 U.S. 563 (1974)
(Failure to provide
special language
instruction to Chinese students violates Title VI
regulations.)
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY (Legal Analysis
Continued)
24
In 2000, all federal
departments and agencies were ordered by the President
to develop policy
guidances to improve access by LEP persons to federally
funded services.
Executive Order 13166, 65 F.R. 50121 (Aug. 16, 2000).7
The guidances, which
continue to be published by federal departments and
agencies, impose
responsibility upon state recipients of federal funds to
ensure that LEP persons
have meaningful access to services and benefits.
Funded entities must
develop and implement comprehensive policies for the
provision of language
assistance at no charge to the LEP individual.
Pennsylvania courts
receive from the United States Department of Health
and Human Services
(HHS) funds relating to the collection of child
support, and may also
receive funds from the Department of Justice and
other federal
agencies and programs. Pennsylvania courts receiving such
funds are therefore
required to comply with the applicable department
guidances.8
Many state agencies
receive federal funds subject to the requirements of
Title VI. The
agencies also conduct formal hearings which result in
decisions that are
reviewed by the Commonwealth Court on the record
made therein. Among
those agencies are the Pennsylvania Department of
Labor and Industry,
which receives extensive funding from the U.S.
Departments of Labor
and HHS, including funding that is the basis of
operations of the
Unemployment Insurance Compensation system, the
Employment Service
and the Bureau of Disability Determination. Since
Unemployment
Compensation Insurance administrative appeals are
reviewed by the
Commonwealth Court on the record made before the
Unemployment Insurance
Compensation Appeals Board, they too are
subject to Title VI
requirements.9 Similarly, the
Department of Public
Welfare receives HHS
funding and is subject to Title VI requirements.
To the extent that
the state courts and agencies that conduct administrative
hearings are
recipients of federal funds, Title VI mandates that broad
policies be
instituted to ensure that the proceedings are fully accessible to
LEP persons.
Considerations regarding language-based discrimination
apply equally to
questions of providing access to those who are hearing- or
vision-impaired.
These requirements, however, arise under the Americans
with Disabilities
Act, 42 U.S.C.§12101 et. seq., and Section 504 of the
Rehabilitation Act of
1973, 29 U.S.C. §794.
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY
38
GENERAL
FINDINGS
After reviewing
relevant testimony, research findings, and survey data,
the Committee found
fundamental statewide deficiencies in the treatment
of LEP litigants.
These deficiencies undermine the ability of the court
system to determine
the facts accurately and to dispense justice fairly.
Key findings include:
• Some courts are
allowing cases involving LEP parties, including criminal
defendants, to
proceed without interpreters.
• Some courts routinely
allow untrained, non-professional individuals,
including relatives
and friends, to act as interpreters.
• Paid court
interpreters are permitted to interpret without any
demonstrated
competency, especially when they are working under
contract.
• The ability of the
court system to determine facts and dispense justice is
compromised by
inadequate language services.
• The lack of standards
in Pennsylvania for the use of interpreters and for
determining
interpreter competency compounds the problem of providing
access to justice for
LEP persons.
SOME COURTS ARE ALLOWING CASES INVOLVING
LEP PARTIES, INCLUDING CRIMINAL DEFENDANTS,
TO PROCEED WITHOUT INTERPRETERS.
Civil and criminal
cases are permitted to proceed without interpreters for
parties who cannot
participate because of their limited English proficiency.
Proceedings sometimes
go forward even when it is apparent that the LEP
party needs or has
requested an interpreter. Fifteen percent of community
agencies surveyed by
the Committee reported clients being refused an
interpreter in a
court proceeding. Two witnesses recounted instances in
juvenile court
proceedings in which the parents were forced to rely upon
interpretation by the
juvenile defendant. Another witness observed an
arraignment that was
conducted without an interpreter, in which a police
officer, following
uninterpreted questioning of the defendant, presented
inaccurate and
prejudicial testimony to which the defendant could not
respond. Judges,
noting a person’s rudimentary English skills, may
improperly fail to
appoint an interpreter even though the person is unable
to understand or
participate in the proceeding without an interpreter.
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY (General Findings continued)
39
The court system
appears to recognize the problem, but often does not
provide assistance to
language minorities. All of the judicial districts
responding to the
State Association of Court Management survey agreed
that the courts
should provide interpreters to criminal defendants, and
about 40 percent
thought interpreters should also be provided in civil cases.
The survey, however,
did not determine the extent to which courts actually
provide services. In
Philadelphia, for example, the courts provide
interpreters for
criminal defendants and for Family Court matters, but not
for civil matters.
The community agency and court administrator surveys
suggest that
interpreters are generally not being provided around the state
in civil cases.
Translations of many
essential documents, such as complaints and waiver
forms, are not
available in Pennsylvania, and there are no document
translations into
languages other than Spanish. Individuals who receive the
documents may rely
upon family or friends for translation, or upon brief
oral summaries that
may be incomplete or inaccurate.
SOME COURTS ROUTINELY ALLOW UNTRAINED,
NON-PROFESSIONAL INDIVIDUALS, INCLUDING
RELATIVES AND FRIENDS, TO ACT AS
INTERPRETERS.
Several bilingual advocates who were in court to
serve as
witnesses complained that judges had drafted them to
serve as interpreters, despite their apparent
involvement in
the case and their lack of specialized training.
Since many courts do
not provide professional interpreters, LEP litigants
are often forced to
rely upon any readily available person as an interpreter.
Community agencies
responding to the Committee survey reported that
family and friends
are the most likely source of interpreters, followed by
the agencies and the
courts. Such people often lack training in
interpretation for
court hearings, and they may be less than fluent in one or
both languages.
Several bilingual advocates who were in court to serve as
witnesses complained
that judges had drafted them to serve as interpreters,
despite their
apparent involvement in the case and their lack of specialized
training.
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY (General Findings continued)
40
When unskilled
interpreters appear in court, the LEP party is likely to
comprehend only a
part of what is occurring. The interpreter may fail to
interpret some
portion of the case, may fail to summarize what is being
said, or may
interpret erroneously. The interpreter may give legal advice to
the litigant, answer
on his or her behalf or change the meaning of what he
or she has said.
Judges and attorneys
who are unfamiliar with the methods used for
interpreting are
generally unable to identify shortcomings in, or the
accuracy of, an
interpreter’s performance. Interpreting techniques are not
difficult to
understand, but to most untrained people they are neither
natural nor intuitive.
Untrained participants in an interpreted dialogue, like
untrained
interpreters, tend to make the same errors. Untrained judges and
attorneys also do not
intuitively grasp that even a fully bilingual person
cannot interpret well
without special training.
PAID COURT INTERPRETERS ARE PERMITTED
TO INTERPRET WITHOUT ANY DEMONSTRATED
COMPETENCY, ESPECIALLY WHEN THEY ARE
WORKING UNDER CONTRACT.
Courts may hire staff
interpreters to handle high-volume languages such
as Spanish. In
Philadelphia, as mentioned above, two of the seven Spanish
staff interpreters
had less than adequate scores on a screening exam, while
the others scored
extremely well. The test results reflected both the strength
and weakness of
Philadelphia’s screening process for staff interpreters.
Contracted
interpreters are often used in court for less familiar languages
or in rural counties.
Frequently, these interpreters are subcontractors
or employees of
interpreting agencies. The interpreters tend to be tested
according to what one
court interpreter administrator calls the
“appearance
standard,” meaning the court is satisfied when an interpreter:
1) is available; 2)
shows up on time; 3) is appropriately dressed and appears
professional; 4)
appears to be bilingual; and 5) elicits no complaints.27
The NCSC Philadelphia
study further noted that the court did not test or
screen contract
interpreters, but instead relied on the interpreting agencies
to assure adequate
skills and training. Based on its experience, NCSC staff
noted that without
careful testing and screening, most agency interpreters
are not qualified to
interpret. More than one witness testifying before
the Committee
complained of interpreters lacking the fluency required for
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY (General Findings continued)
41
court work, or
lacking knowledge of proper techniques. Incompetent
interpreters may
“lose” or distort important evidence, and they may fail to
communicate to an LEP
person what is happening in the proceeding.
THE ABILITY OF THE COURT SYSTEM TO DETERMINE
FACTS AND DISPENSE JUSTICE IS COMPROMISED
BY INADEQUATE LANGUAGE SERVICES.
Courts and juries in
cases involving untrained interpreters routinely receive
inaccurate or
incomplete testimonial evidence. In such cases, many litigants
and witnesses may
fail to comprehend questions fully, and may be unable
to communicate fully
in English what they know. When parties fail to
understand the
testimony of a witness, they may be unable to assist counsel
in effective
cross-examination.
Determining the facts
is a critical function of any trial court or
administrative
hearing, and the current system of interpreting undermines
the court’s
capability in this area. Whether the factfinder is a judge or jury,
inaccurate renditions
of testimony threaten the integrity of the proceeding.
In this regard, many
observers do not understand that poorly interpreted
witness testimony is
similar to hearsay testimony. Professional interpreters
adhere to the
standard of consecutive interpreting: add nothing, change
nothing, omit
nothing. Untrained interpreters, on the other hand, tend to
summarize questions
and answers, respond for the witness, and gloss
over nuances in
language that may be critical to the evidence. Interpreters
may also make simple
errors in phrasing or word choice because of an
inadequate command of
one or both languages. When the factfinders, in
turn, misunderstand
the interpreters, a second layer of distortion can occur.
On another level, an
interpreter’s skill and appearance may influence subtle
credibility
determinations made by the factfinder. Intonation, hesitation,
emotion, eye contact,
and deference may all contribute to the appearance
of honesty or deceit.
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY (General Findings
continued)
42
THE LACK OF STANDARDS IN PENNSYLVANIA FOR
THE USE OF INTERPRETERS AND FOR DETERMINING
INTERPRETER COMPETENCY COMPOUNDS THE
PROBLEM OF PROVIDING ACCESS TO JUSTICE FOR
LEP PERSONS.
Deficiencies in court
language services exist across the Commonwealth.
No jurisdiction is adequately
meeting the need for interpreters, and the
standard of work
performed in all jurisdictions reflects the lack of uniform
standards, training,
and testing. This situation persists despite a growing
national consensus on
the need for court interpreting that has already
placed Pennsylvania
in a shrinking minority of states.
The court system
would benefit greatly from the development of statewide
standards for
performance and certification of court interpreters and from
training for judges
and court staff on working with LEP parties. Standards
and protocols and
model codes are readily available.
Certification exams,
which are extremely expensive to design and validate,
are available to
members of the State Court Interpreter Certification
Consortium, and other
states have developed protocols to screen
interpreters in
languages for which certification exams have not yet been
developed.
Court administrators
suggested in the survey that they are receptive to the
development of
uniform standards. More than 50 percent said they
preferred statewide
testing and certification of interpreters rather than local
or regional control.
More than 33 percent favored joining the consortium,
while 59 percent
wanted more information before deciding.
Pennsylvania, unlike
many states, has no ethical standards for court
interpreters. The
Commonwealth could adopt a model ethical code that is
in use elsewhere,
incorporating sections on testing for interpreters, training
in ethics, and rule
enforcement.
Training for
interpreters and those who work with them is a critical
component of a court
interpreter system. Judges need to learn how to
determine if an
interpreter is needed, how to establish the competence of
the interpreter, and
how to supervise the interpreter in the court system.
Lawyers, likewise,
can benefit from instruction in working with
interpreters. Justice
would be served if training were mandatory for the
bench and the bar.
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY
43
RECOMMENDATIONS
In formulating the
following recommendations, the Committee
acknowledges that the
implementation of these recommendations is likely
to be costly.
Nonetheless, they are essential to providing equal access to
justice to LEP
individuals.
TO THE SUPREME COURT OF PENNSYLVANIA
The Committee
recommends that the Court: 28
1. Establish for all
courts of the Commonwealth of Pennsylvania a policy
that all persons,
including parties to judicial proceedings, witnesses
appearing therein,
victims in criminal proceedings, and members of the
public seeking
information from offices of the courts, shall have equal
access to justice in
the judicial system of Pennsylvania without regard to
their English
language proficiency.29
2. Require that all
courts provide qualified interpreters to litigants at no
charge, in order that
LEP parties and witnesses may fully and fairly
participate in court
proceedings and obtain reasonable access to the
court system.
3. Require that the
courts translate forms and other documents to the
extent necessary to
provide access to the court system to those unable
to read English.
4. Require that all
court interpreters obtain certification pursuant to a
recognized statewide
certification program, maintain their proficiency
through continuing
education, and adhere to standards of professional
conduct.
5. Require the
adoption of a code of professional responsibility for
judicial interpreters
together with mechanisms to assure that all
interpreters are
familiar with the code and are subject to discipline for
any violation.
6. Establish within
the Administrative Office of the Pennsylvania Courts
(AOPC) a Language
Services Office,30 similar to those
established by
other states, staffed
by professional administrative personnel
experienced with
issues related to court interpretation and translation,
and funded
sufficiently to carry out its mission. (Please refer to Endnote
30 at the end of this
chapter for a full listing of suggested services to be
provided by a
Language Services Office.)
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY (Endnotes)
44
ENDNOTES
············································
1 “Limited English proficient” is a term generally
used to encompass persons who are “non-English speaking” as well as persons who
do not speak English with sufficient fluency to function effectively in a
particular setting without oral interpretation or written translation
assistance.
2 Of the 368,257 persons age 5 and over who do not
speak English very well, 140,502 are Spanish speaking and 76,183 are Asian and
Pacific Islanders, according to Census 2000 figures. Census 2000, Table DP-2.
Profile of Selected Social Characteristics, 2000. Geographic area:
Pennsylvania.
U.S. Census Bureau, Census
2000, (December 2000)
<http://factfinder.census.gov/servlet/QTTable?ds_name=DEC
2000 SF3 U&geoid=04000US42&qr_name= DEC 2000 SF3 U DP2>
3 In the first seven months of calendar year 2001,
the First Judicial District of Pennsylvania (Philadelphia County) received
requests for language interpretation services in 35 different languages and
dialects. In addition to requests for services from eight full-time Spanish
language interpreters, the First Judicial District reported that of its
remaining requests for interpretation services: 30 percent were for Asian
languages and dialects; 25 percent were for Russian and Slavic languages and
dialects; 18 percent were for sign language (including American and Spanish
sign); 15 percent were for European languages and dialect; 5 percent were for
Middle Eastern languages and dialects; up to 2 percent were for African
languages; and 5 percent were for other languages or dialects only infrequently
requested. Source: First Judicial District of Pennsylvania.
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY (Endnotes)
45
In calendar year 2000,
the First Judicial District of Pennsylvania (Philadelphia County) received
requests for interpreters in 57 different languages and dialects. These were
identified as:
First Judicial
District of the Court of Common Pleas response to Pennsylvania Association of
Court Management, Court Interpreter and Translator Survey.
Other Judicial
Districts of the Court of Common Pleas, responding to Pennsylvania Association
Of Court Management, Court Interpreter And Translator Survey indicated the
following additional languages not identified by the First Judicial District:
Croatian and Serbian (three judicial districts); Egyptian (Arabic) and Thai
(Monroe County).
4 Each of the Work Group members has extensive
experience working with litigants with limited English proficiency. Their
experiences range from directing an interpreting services agency to providing
legal representation on a daily basis to litigants with limited English
proficiency.
5 A bibliography of published material relevant to the
issues studied by the Committee can be found at Appendix Vol. I.
6 The Committee relied heavily upon Kathleen M.
Sullivan, A
Judge’s Handbook on Immigration Law and Related Materials (Chicago: American Bar
Association 2001), particularly Chapter 14 therein, “Court Interpreters:
Appointment, Qualification and Effective Utilization,” as updated by Sarah
Paoletti, Esq., Friends of Farmworkers, Inc.
7 Executive Order 13166, 65 F.R. 50121 (August 16,
2000) <http://www.usdoj.gov/crt/cor/Pubs/eolep>.
8 67 F.R. 4968 (February
1, 2002) <http:www.hhs.gov/ocr/>.
HHS’s Office for Civil
Rights notes:
Title
VI prohibits discrimination in any program or activity that receives Federal
financial assistance. What constitutes a program or activity covered by Title
VI was clarified by Congress in 1988, when the Civil Rights Restoration Act of
1987 (CRRA) was enacted. The CRRA provides that, in most cases, when a
recipient/covered entity receives federal financial assistance for a particular
program or activity, all operations of the recipient/covered entity are covered
by Title VI,
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY (Endnotes)
46
not
just the part of the program that uses the federal assistance. Thus, all parts
of the recipient’s operations would be covered by Title VI, even if the federal
assistance is used only by one part. U.S. Department of Health and Human
Services, Office for Civil Rights, Policy Guidance Title VI Prohibition Against
National Origin Discrimination As It Affects Persons With Limited English
Proficiency, Part C.1. (September 1, 2000). See extensive discussion at Part B thereof as to the
legal authority under Title VI for the HHS guidance.
9 The Department of Labor LEP Policy Guidance, 66 F.R. 4596 (January
16, 2001)
<http://www.usdoj.gov/crt/cor/lep/dollep.htm>.
* * *
{Note: Linked
endnotes 10-27 in Chapter 1 Final Report at pages 46-48}
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY (Endnotes)
48
* * *
28 In its comments to the proposed Rule of Court
Administration relating to Equal Access to Justice in the Courts of the
Commonwealth of Pennsylvania, the Supreme Court of Pennsylvania should note
that it anticipates that in implementation of that Rule, courts will utilize
the guidance which has been provided under Title VI of the Civil Rights Act of
1964 relating to National Origin Discrimination Against Persons With Limited
English Proficiency pursuant to United States Presidential Executive Order
13166, “Improving Access to Services for Persons with Limited English
Proficiency.”
29 The Committee notes that during the study, similar
concerns were raised regarding the needs of the hearing impaired. The Committee
determined that the needs of the hearing impaired were beyond the scope of its
study but urges the Court to consider addressing the needs of the hearing
impaired and citizens with limited English proficiency at the same time since
they involve similar issues and solutions.
30 The Language Services Office shall be
responsible for:
a)
Enrolling the Pennsylvania Unified Judicial System as a member of the State
Court Interpreter Certification Consortium of the National Center for State
Courts;
b)
Establishing procedures for the employment, training, compensation,
qualification, and approval of staff and contracted court interpreters during
the transition to statewide certification standards;
c)
Creating a comprehensive statewide system to assure qualified judicial
interpreters, including:
i)
Adopting standards for the skills and qualifications required for different
levels of expertise of interpreters as well as job descriptions for
interpreters and supervisors;
ii)
Assessing the need for and implementing orientation training, certification
training, and continuing professional education;
iii)
Overseeing the administration of consortium certification exams in available
languages needed by the courts; and developing testing protocols for languages
for which consortium exams are not developed;
iv) Determining the advisability of and
standards for certifying knowledge of the Code of Professional Responsibility
for Judicial Interpreters; and
v)
Developing guidelines for compensation scales for staff and contracted
interpreters at various levels of proficiency and experience.
d)
Creating and managing a statewide administrative system for interpreting,
including:
i)
Recruiting and hiring staff interpreters and contracted interpreters;
ii)
Creating a system to assign interpreters efficiently, as needed, to proceedings
across the state to assure maximum use of the most qualified interpreters and
the avoidance of delay for the courts, the litigants, and the interpreters;
iii)
Supervising the work of interpreters to maintain quality and professionalism;
and
iv)
Gathering and analyzing data on the need for, use of, and cost of the
interpreter program, and making recommendations for improvement of the system.
e)
Developing protocols for the use of interpreters in courts and courthouses,
including:
i)
Adopting a bench guide for judges to consult in the proper utilization and
supervision of interpreters in judicial proceedings, including standard voir
dire questions for court interpreters and for witnesses and/or litigants to
determine whether appointment of an interpreter is necessary;
LITIGANTS WITH LIMITED
ENGLISH PROFICIENCY (Endnotes
Continued)
49
ii)
Adopting standards for such matters as the techniques to be used by
interpreters; the correction of interpreter errors and objecting
interpretation; and avoidance of interpreter fatigue;
iii)
Consistent with published Title VI guidances, identifying those vital written
documents, forms, posted notices, and signs utilized by the courts that should
be required to be translated to other languages and into which other languages
such written materials should be translated;
iv)
Developing a system to create reviewable interpreting records, including (1)
appropriate tape recording of witnesses and interpreters and the proceedings to
the extent feasible, so as to have a complete record for judicial review and
challenges to the adequacy of interpretation;
and (2) video recording of the witness and interpreter where sign
language interpretation or other assistance to hearing impaired persons is
provided;
v)
Developing policies and procedures for the use of video telephone conferencing
systems for court interpretation when qualified on-site interpreters are not
available, assuring with those policies that video interpreters are qualified;
vi) Determining means to provide meaningful
access to LEP persons who are pro se litigants; and
vii) Adopting
procedures to assure that language services are provided to assist
court-appointed counsel in communicating with LEP clients in criminal and other
matters.
f)
Promoting increased hiring of bilingual and bicultural court staff able to
deliver services to LEP parties without the need for an interpreter, including
development of job descriptions for bilingual positions, providing fiscal
support for upgrading skills of existing bilingual employees, and recommending
practices to facilitate recruitment and retention of bilingual staff.
g)
Working with continuing legal education providers and the administrative office
of the Pennsylvania Courts to develop training and educational systems for
attorneys, judges, court administrators, and others as to issues relating to
the equal access to justice for LEP persons and for the utilization of court
interpreters. h) Engaging in study of other issues relating to providing equal
access to LEP litigants and making further recommendations in such areas as:
i)
Assessing how the cultural norms of immigrant communities may adversely impact
their ability to obtain equal justice in the judicial system and what remedial
action is appropriate;
ii)
Determining how foreign-born litigants’ immigration status may affect their
rights to equal access to justice in Pennsylvania judicial proceedings and how
the adverse aspects of such impact may be minimized; and
iii)
Establishing mechanisms for providing members of LEP immigrant communities with
accurate information about their legal rights and options open to them, which
could include an explanation of the possibility of free or pro bono representation, lists
of competent referrals for different kinds of translation or other services,
and types of problems which can be addressed through the legal system.
i)
Ensuring that all Pennsylvania courts and Commonwealth administrative
departments or agencies which conduct hearings that are subject to judicial
review on the record also develop procedures to comply with Title VI of the
Civil Rights Act of 1964 and its implementing regulations.
COMMITTEE AND SUBCOMMITTEE
MEMBERS
5
COMMITTEE
AND SUBCOMMITTEE
MEMBERS
COMMITTEE ON RACIAL AND GENDER BIAS
IN THE JUSTICE SYSTEM
Nicholas P. Cafardi, Chair
Dean, Duquesne University
School of Law
Honorable Ida K. Chen
Court of Common Pleas,
Philadelphia
Thomas L. Cooper, Esq.
Gilardi, Cooper, Lomupo
André L. Dennis, Esq.
Stradley, Ronon, Stevens
& Young, LL.P.
Honorable Nelson A. Diaz
City Solicitor, Philadelphia
Professor Phoebe A. Haddon,
Esq.
Temple University Beasley
School of Law
Roberta D. Liebenberg, Esq.
Fine, Kaplan and Black
Charisse R. Lillie, Esq.
Ballard, Spahr, Andrews &
Ingersoll, LL.P.
Lynn A. Marks, Esq.
Executive Director,
Pennsylvanians for Modern Courts
Burton D. Morris, Esq.
Harrisburg, PA
Monsignor David Rubino
Seton Hill College
Staff
Lisette M. McCormick, Esq., Executive Director
Jennifer Collins, Research Assistant
Eileen Mackowiak, Secretary
Nancy Mancuso, Paralegal
Danielle S. Williams, Staff Counsel
COMMITTEE AND SUBCOMMITTEE
MEMBERS
6
RACIAL
AND ETHNIC BIAS SUBCOMMITTEE
WORK GROUPS
Committee Members
André L. Dennis, Esq.,
Co-Chair
Professor Phoebe A. Haddon,
Esq., Co-Chair
Charisse R. Lillie, Esq.,
Co-Chair
* * *
Litigants with Limited English
Proficiency
Quan Pham, Chair, Philadelphia
Osvaldo Aviles, Philadelphia
Honorable Ida K. Chen,
Philadelphia
Pedro Cortes, Esq., Harrisburg
Luis Diaz, Esq., Philadelphia
Stephen Krone, Esq.,
Harrisburg
Arthur Read, Esq.,
Philadelphia
Judith A. Robinson, Esq.,
Harrisburg
Paul Uyehara, Esq.,
Philadelphia
Open Report as Adobe Portable Document File
Open Report with Bibliography as Adobe Portable Document
File
Go to
Pennsylvania Supreme Court Website for full Racial and Gender Bias Report,
Appendix Volumes and Transcripts.
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