By Jamie Cho, Ph.D., and Joyce Shui, J.D.
In one recent courtroom, we watched as a respondent was repeatedly referred to as the “poop person.”
In court, language is supposed to be precise. Controlled. Elevated. Words memorialize what happened, ideally imposing consequences for wrongdoing. Words allow rights to be exercised. And words determine outcomes. A party’s credibility, their ability to navigate the system, and potentially their life and liberty depend on language access. When a party’s language skills are limited, extra jeopardy attaches. Because our courts are English-centric, the ability of a limited-English person to understand legal proceedings, to self-advocate, and to respond to attacks and insults is compromised. Interpretation failures can cost someone their freedom.
The challenges faced by parties requiring interpretation is frequently invisible to courts. This is especially so for people who speak languages significantly different in syntax and idiomatic expressions from English.
One simple example with respect to Mandarin is that the word for “he” and “she” is the same. When an interpreter is interpreting in a court proceeding, the interpreter must make a rapid-fire decision on which pronoun to assign. This best-guess approach can result in confusion to the English-language courtroom and unfairly impact credibility. A party may appear to be inconsistent in their story in English or to be changing their story even when they are entirely consistent in their native language. The consequences in Mandarin, where tone and pronunciation are integral to meaning, can be especially impactful. And the interpretation problems are compounded by the fact that very few attorneys speak or understand Mandarin at all, let alone well enough to detect errors in interpretation real-time.
In addition to the problems with the court accurately assessing credibility when an interpreter is used, there can be invisible psychological impacts to limited-English participants which in turn can adversely impact a party’s self-confidence or ability to tell their story.
In the courtroom incident we describe above, the respondent had requested Mandarin interpretation. The interpreter was not a native Mandarin speaker and, in rendering the judge’s and other English speakers’ words into Mandarin, repeatedly referred to the respondent as “the poop person” (大便人).
Even if the respondent mentally translated “poop person” to “respondent” (答辩人), the repeated mislabeling was a degrading reminder of the respondent’s disadvantage in court. In addition to all else they may have been challenged to explain as they defended against a legal claim against them, they contended with the judge calling them (voiced through the interpreter) a “poop person” throughout the proceedings.
Why would a non-native English, non-native Mandarin interpreter be interpreting for an English-Mandarin legal proceeding? The answer is multi-faceted.
Historical bias. The U.S. imposed strict limits on Asian immigration until the late 1960s (e.g., the Chinese Exclusion Act of 1882 and the (Anti-Asian) Immigration Act of 1924). This means that there is an artificially constrained pipeline of bilingual interpreters.
Faulty “science.” For decades, pediatricians cited faulty science and counseled immigrant parents to speak English only in their homes, warning their children would not learn English. As a result, children who might have learned another language became monolingual, speakers of English only.
The unfortunate “Melting Pot” narrative. The “Melting Pot” term comes from a 1908 play by that name and celebrates assimilation, rather than retention of unique cultural identities and language skills. For decades until the “salad bowl” became a conceptual replacement, second-generation children did not learn their parents’ languages.
Limited Foreign Language Offerings. In contrast to other countries, the United States does not typically offer second language instruction until middle school, and many students are not exposed to a second language until high school. Until the early 2000s, Mandarin was offered in less than 1% of high schools.
Judicial Assumptions and Defendant Psychology. Because many judges have limited familiarity with other languages, they may assume that different languages are sufficiently similar to allow for accurate interpretation. In reality, that is often not the case. For example, Gulf Arabic (e.g., Saudi) and North African Arabic (e.g., Moroccan) can be so mutually unintelligible that speakers use a third language, such as English, to communicate. Similarly, Cantonese and Mandarin are mutually unintelligible, despite both being categorized as “Chinese.”
Even when judges ask whether a party understands the interpreter, individuals in court, particularly immigrants, often feel pressure to agree. Dependent on the interpreter and reluctant to cause offense or disruption, they may indicate understanding even when comprehension is incomplete.
English-Only Mentality. Americans at large still operate with an English-only mentality, assuming official proceedings or documents should be in English and giving little thought to those who do not understand English well. Even as tourists in other countries, Americans tend to presume others will speak English. This English-only mentality means that any offering in another language, however flawed, is considered something to be grateful for, rather than ever questioned.
Given the challenges faced by non-English speaking parties in court, we brought our concerns and recommendations to a number of state senators and representatives. Washington State Senator Bob Hasegawa, a longtime champion of equity and justice, In response and collaboration, Senator Hasegawa recently introduced Senate Bill 6362. to help address our concerns. This bill seeks to bring higher fidelity and greater oversight to court interpretation, a function too often treated as an afterthought, when it is essential to due process.
Language access is not a technicality or a courtesy. Systemic changes will be required to increase the number of bilingual Americans, expand the pool of qualified interpreters, provide more training, establish higher standards, and eliminate situations where people feel compelled to feign understanding or silently endure indignity in moments that matter most.
We must demand improvements to the legal system so that everyone can fully and fairly participate. Continued support of bills like SB 6362 and working with responsive, thoughtful civil servants like Senator Hasegawa are just a couple such steps. Meaningful language access is a condition of justice, and we must ensure it is treated as a right.
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