In a recent unpublished appellate division case, the court vacated a final restraining order on the grounds that the record below was insufficient because of the trial court’s failure to adhere to the requirements for accurate interpretation. While the decision itself is otherwise typical, the court’s review of the interpretation requirements in NJ is notable.
It is the responsibility of the trial court to ensure an accurate interpretation of the record. A judge has broad discretion in controlling the courtroom and court proceedings. Additionally, the court has a duty to prevent conduct which may negatively impact on the trial process and affect the rights of the parties or the outcome of the case. In addition to making legal determinations, the trial judge is the “master of ceremonies.”
The New Jersey Judiciary Language Access Plan (LAP), in conjunction with case law and rules, sets forth guidance on language access services for judicial proceedings for the courts of this state. The LAP provides that an interpreter will be provided to any court user when either that court user or that court user's attorney represents that the person is unable to understand or communicate proficiently in English. This service is provided for free in NJ. Notably, in other states and in federal court, interpretations services are not always provided at no cost. The rationale of the LAP is that interpreters are to be used when failure to do so could negatively impact a litigant's rights.
It is also necessary for trial judges to ensure a clear record. This is true whether there is an interpreter or not. However, it is especially true in cases where there is an interpreter because the tendency for people to speak over each other and ‘muddy’ the record is even more acute. In consecutive interpreting, the speaker must pause for the interpretation to be put on the record. Other phases of the proceeding are interpreted simultaneously with no pauses for the interpretation. Part of the rationale for this requirement is that if the case is appeal and the record is indiscernible, then the reviewing court cannot understand what happened. When there are instances of persons talking over each other and at the same time — simultaneous speech – there cannot be an accurate transcript.
But there is a more practical reason to ensure clear and accurate interpretations. You simply do not want to have to get to the appellate division to win your case on this basis. You want the trial court to hear the testimony and understand it.
If you require the services of an interpreter please take the following steps:
- Let the judge or your attorney know;
- Make sure you have an opportunity to speak with the interpreter prior to the hearing where you will testify to make sure that there is no issue with dialect and to give them an opportunity to listen to the way you speak;
- Make sure that everyone understands that there is a need to take pauses to allow the interpreter to interpret. If you see this is not happening raise your hand and say so.
- Make sure that the interpretation is accurate. If you feel that the interpreter is not stating your testimony accurately – raise your hand and say so.
The point is simply to ensure that mistakes are corrected before the end of the trial or hearing so that you have a fair opportunity to present your case and understand the proceedings.