Group
#12: What the Court Record Shows and Doesn’t Show
Court Interpreting on Appeal
Elizabeth Cole, University of Michigan Law
School
When a record is created in a criminal matter, it
includes only that which is provided for the factfinder to hear, typically in
English. When a court interpreter is utilized, either for a witness or for a
defendant, no record of the original language and/or interpretation is
maintained. Because other languages are not included in the record, what is
interpreted is not included in any transcript of criminal cases. This can be
particularly difficult at trial, where utilizing specific words can mean the
difference in the outcome of a case. For example, a mistake in interpretation
(either in language generally or because of discrepancies in dialect) can cause
an entire trial to change course, but without a corresponding record, that
defendant has no opportunity to address the mistake and correct it.
This may cause not only problems related to the
right to confront witnesses but is also problematic in terms of effective
assistance. When an attorney makes a mistake, we have the opportunity to review
their actions under the test set forth in Strickland v. Washington to determine
whether they are ineffective. When an interpreter makes a mistake, there is no
recourse because there is nothing to review to catch said mistake.
One possible solution is creating a recording
system, triggered when an interpreter is used in court. This obviously creates
other issues, but the central principle is that defendants should not lose
fundamental rights in court simply because they do not speak the language cases
are typically conducted in.
Montaillou The Abstraction of a Heresy
Lawrence A. Stein, Northern Illinois
University College of Law
A two-volume collection found in the modern era in
the Vatican archives of the testimony taken at Montaillou, in Southwestern
France in the 1200’s near the Pyrenees to root out a heresy illuminates more
than the theological and historical issues. The testimony, called alternatively
“trials” and “depositions” are really neither, but rather an abstract of the
testimony, distilling the testimony to the relevant facts and transforming it
to complete sentences as opposed to questions and answers, much like a modern
lawyer will distill a deposition transcript. The manuscripts do not reveal the
first order interrogations, but rather a second order distillation of that lost
or never recorded initial interrogation.
Moderator and Discussant: Jason Parkin, CUNY School of
Law