The Moral Dilemmas of Court Interpreting

In court interpreting, the law distinguishes between the prescribed activity of what it considers translation – defined as an objective, mechanistic, transparent process in which the interpreter acts as a mere conduit of words – and the proscribed activity of interpretation, which involves interpreters decoding and attempting to convey their understanding of speaker meanings and intentions. This article discusses the practicability of this cut-and-dried legal distinction between translation and interpretation and speculates on the reasons for its existence. An attempt is made to illustrate some of the moral dilemmas that confront court interpreters, and an argument is put forward for a more realist understanding of their role and a major improvement in their professional status; as recognized professionals, court interpreters can more readily assume the latitude they need in order to ensure effective communication in the courtroom. Among members of the linguistic professions, the terms interpretation and interpreting are often used interchangeably to refer to the oral transfer of meaning between languages, as opposed to translation, which is reserved for the written exercise. Interpretation, however, becomes a potentially charged and ambiguous term in the judicial context, where it refers to a specific judicial process. This process is performed intralingually, in the language of the relevant legal system, and effected in accordance with a number of rules and presumptions for determining the ‘true’ meaning of a written document. Hence the need to adopt a rigorous distinction between interpreting as an interlingual process and interpretation as the act of conveying one’s understanding of meanings and intentions within the same language in order to avoid misunderstanding in the judicial context. Morris (1993a) discusses the attitude of members of the legal community to the activities and status of court interpreters, with particular reference to English-speaking countries. The discussion is based on an extensive survey of both historical and modern English-language law reports of cases in which issues of interlinguistic interpreting were addressed explicitly. The comments in these reports record the beliefs, ISSN 1355-6509  By and large, they reflect negative judicial views of the interpreting process and of those who perform it, in the traduttore traditore tradition, spanning the gamut from annoyance to venom, with almost no understanding of the linguistic issues and dilemmas involved. Legal practitioners, whose own performance, like that of translators and interpreters, relies on the effective use and manipulation of language, were found to deny interpreters the same latitude in understanding and expressing concepts that they themselves enjoy. Thus they firmly state that, when rendering meaning from one language to another, court interpreters are not to interpret – this being an activity which only lawyers are to perform, but to translate – a term which is defined, sometimes expressly and sometimes by implication, as rendering the speaker’s words verbatim. When it comes to court interpreting, then, the law distinguishes between the prescribed activity of what it calls translation – defined as an objective, mechanistic, transparent process in which the interpreter acts as a mere conduit of words – and the proscribed activity of interpretation, which involves interpreters decoding and attempting to convey their understanding of speaker meanings and intentions. In the latter case, the interpreter is perceived as assuming an active role in the communication process, something that is anathema to lawyers and judges. The law’s attitude to interpreters is at odds with the findings of current research in communication which recognizes the importance of context in the effective exchange of messages: it simply does not allow interpreters to use their discretion or act as mediators in the judicial process. The activity of interpretation, as distinct from translation, is held by the law to be desirable and acceptable for jurists, but utterly inappropriate and prohibited for linguists. The law continues to proscribe precisely those aspects of the interpreting process which enable it to be performed with greater accuracy because they have two undesirable side effects from the legal point of view: one is to highlight the interpreter’s presence and contribution, the other is to challenge and potentially undermine the performance of the judicial participants in forensic activities. 1. Interpretation as a communicative process The contemporary view of communication, of which interlingual interpretation is but one particularly salient form, sees all linguistic acts of communication as involving (or indeed, as being tantamount to) acts of translation, whether or not they involve different linguistic systems. Similarly, modern translation theorists see all interlingual translation as