Sign Language Interpreters in Court: Understanding Best Practices

A number of spoken language interpreting cases have examined the issues that arise when the interpreter is borrowed to interpret for a NES witness. Borrowing means that when there is a NES witness, the spoken language interpreter at counsel table leaves the defendant’s side and moves to the NES witness to interpret their testimony. When the NES defendant wants to confer with counsel during the witness’ testimony, there is no longer an interpreter seated at the table for this function. The proceedings must stop and the interpreter must be called back from the witness stand to counsel table to interpret the privileged conversation.

ASL interpreters, standing in the middle of the courtroom have the same issue in reverse – they must stop interpreting the proceedings, leave the well of the courtroom, walk to the defendant and interpret for private counsel and client conferences in the absence of a table interpreter. ASL interpreters do not have to leave the well for deaf witnesses, only for conferences between counsel and client. Spoken language interpreters face the borrowing issue when there are both NES parties and NES witnesses present in a matter.⁴⁸ Because ASL interpreters stand in the middle of the courtroom, they face this issue each and every time there is a privileged conference, in any proceeding, even if there are no deaf witnesses in the case. This constitutes a critical difference between ASL and spoken language interpreters.

In the criminal context, leaving the NES defendant without access to counsel while the interpreter is otherwise occupied with a witness raises concerns of constitutional magnitude. The Sixth Amendment guarantees that one tried for a crime has a right to be present during the proceedings, to confront and cross-examine witnesses, and to have the effective assistance of counsel throughout the proceedings.⁴⁹ If the defendant is not linguistically present because the court has borrowed the proceedings interpreter to perform the witness function, then there is a valid Constitutional challenge to the fairness of the trial process.⁵⁰ With ASL interpreting, the deaf person’s linguistic presence is even less secure. Absent a table interpreter, the deaf person has no access to counsel while the proceedings interpreter is carrying out the bulk of the work. The issue affects deaf litigants during the entirety of each proceeding, not just during deaf witness testimony.

To summarize, spoken language interpreters are stationed in the well of the courtroom only when there is a NES witness involved. If another interpreter is not provided, the NES party does not have access to counsel while the interpreter is gone. The ASL proceedings interpreter is always stationed in the well of the courtroom. The deaf party does not have access to counsel while the interpreter is interpreting all of the proceedings and all witness testimony.

To further complicate matters, when an ASL table interpreter is present, he or she is placed where the spoken language interpreter normally sits at counsel table. However, the ASL table interpreter is not performing the same functions as the spoken language interpreter would be performing sitting there. Considering these differences and the varying use of terminology to describe interpreters’ roles, it is a wonder courts ever get it right.

While the concepts may be difficult to visualize without significant experience in a courtroom, interpreters should be able to explain the varying tasks, the vocabulary differences and the placement issues to the court and present a plan for staffing a particular case in a cogent, articulate and understandable manner.