by Dan DeCoursey
Article featured in the summer 2011 issue of Proteus, a publication by the National Association of Judiciary Interpreters and Translators (NAJIT) www.najit.org. Reprinted with permission from writer.
A colleague once told an anecdote about an attorney who asked him to interpret a legal phrase into Spanish. When the interpreter did so, the attorney exclaimed, “See?! That proves it! Interpreters don’t know what they’re doing – every time I ask an interpreter to translate [sic] that phrase, they say something different.” My initial reaction was that the anecdote revealed the complexities of interpretation, but later I wondered if it also hinted at an unfortunate tendency in our profession. Instead of sharing terminology openly, interpreters ma become defensive, perhaps even hostile. when hashing over certain terms, as if discussing terminology were akin to bringing up politics or religion at a family reunion. In both cases, the end may be hurt feelings and resigning ourselves not to bring up the topic again.
I was excited to see that the 2011 NAJIT conference in Long Beach, California had much to offer on terminology issues. A few sessions quickly revealed the quagmire that terminology can become. I first went to a presentation by Sandro Tomasi, author of An English-Spanish Dictionary of Criminal Law and Procedure. After years of research, he had come to the conclusion that many of the terms interpreters have been taught in U.S. training programs are not used in the legal codes of Spain and Latin America, and therefore, are not exact equivalents and so potentially misleading. His preferred terms come from Spanish-monolingual legal dictionaries from Spain and Argentina. He gave the example of declaracion, which many use to interpret the term “plea,” but which can also mean “statement.” Mr. Tomasi pointed out that, in an initial appearance in Latin America, defendants often make a statement to the judge regarding their version of the facts. Therefore, if we employ the word declaracion when an attorney says to his client, “You’ll enter a plea and then we’ll set the next court date,” a Latin American defendant, might very well believe he is to make a statement to the judge, perhaps even admitting certain elements of the crime. To avoid such misunderstanding, Mr. Tomasi recommended the term contestacion, which he encountered in legal codes from Latin America and Spain. For “guilty plea,” he proposed admision de culpabilidad
Another problematic term came up in Laura Cahue’s session on understanding the language of medicolegal death investigations: medico forense, literally, “forensic doctor,” which is actually an imperfect rendition of the term “coroner,” since not all coroners are doctors. Penal codes in Latin America and Spain refer to the pesquisidor, or “legal investigator,” a term I had come across as a translator but rarely used as an interpreter. In order to convey the nuance contained in the word “coroner,” the phrase sobre muertes no naturales, [of unnatural deaths] needs to be added.
As a language enthusiast, I say: the more terms, the merrier! But just as I was considering enrolling in law school in Buenos Aires, I attended Holly Mikkelson’s presentation. Ms. Mikkelson discussed a study of court interpretation in Hong Kong. When Hong Kong was a British colony, laws were written only in English, and court interpreters had to coin their own Chinese language terms which could be readily understood by the public. Then, when Hong Kong became part of mainland China, Hong Kong hired legal translators to translate all its laws into Chinese. The terms chosen by the legal translators, not surprisingly, were often more lengthy and obtuse than those previously introduced by interpreters. In the interest of strict formal equivalence, the legal translators opted for Chinese legalese. Court interpreters were then faced with the dilemma that their listeners often did not understand the new terminology. Many interpreters began to compensate by using the new legal translations and then adding a more accessible, interpreter-created term to aid comprehension. Ms. Mikkelson pointed out that these interpreters were employing the Skopos theory of translation, which focuses on function, or how well a translation, or in this case, an interpretation, achieves its purpose. This type of compensation sounded like a very reasonable approach, especially for relatively short terms. But coming out with pesquisidor sobre muertes no naturales o medico forense [legal investigator of unnatural deaths or forensic doctor] each time a judge says “coroner,” might leave even a Spanish-language auctioneer tongue-tied.
Although one might think that formal terms introduced by legal translators were more accurate than those coined by court interpreters, according to this study, a Hong Kong judge actually determined that, as the laws were written, a defendant was guilty of a particular charge according to the language of the law in English, but innocent according to the language of the law in Chinese. Such a finding makes one wonder whether exact equivalence in legal concepts is even possible between two languages or different judicial systems.
In another session, Mexican attorney Tony Rosado described a situation when Mexican attorneys and judges were observing proceedings in a U.S courtroom. The interpreters’ listeners were no longer laypersons, as had been the case in Hong Kong, but legal professionals. It turned out that the Mexican attorneys and judges did not understand many of the terms the interpreters bandied about, and were even amused by some, because they were not used in the Mexican legal code. He mentioned the term juez menor, which many interpreters use to interpret the tile “magistrate.” Unfortunately, and to the amusement of the visiting Mexican judges and attorneys, this may also be taken to mean “younger judge.” The equivalent term in the Mexican legal system is juez de preinstruccion, according to Rosado. Some of the Mexican legal terms he mentioned, however, did not match terms proposed by Tomasi. One interpreter commented that since in California and the southwest, most listeners are from Mexico, interpreters should employ Mexican legal terms. I briefly considered adding a law degree from Mexico to my to-do list.
All these different options left me feeling a little bewildered. Which term is the best? I don’t have a definitive answer, but it is certainly a question worth asking. Monday morning, however, the courtrooms were waiting, and I knew my terminology decisions had to be made in split seconds. For now, I suppose I will choose my terms based on several factors, including my audience, whether I am interpreting in simultaneous or consecutive mode, and other situation-specific factors.
I am grateful to all these presenters for helping expand my lexicon and for giving me tools to evaluate my choices. I wonder if it might be possible for court interpreters to incorporate both equivalent and functional terms in our terminology lists, and then we can choose the best option depending on the situation, without betraying our professional standards. I am certainly glad to have pesquisidor sobre muertes no naturales as part of my arsenal, but i’m not going to discard medico forense yet.
Some interpreters might find it frustrating that so many renditions are possible for common legal terms in English. Some might find it even more exasperating that interpreters cannot agree on which terms to use. I suppose that language is a complex moving target that does not lend itself to rigid, mathematical absolutes. I have witnessed many disagreements, including some at the conference, in which one interpreter claims that another’s preferred term is incorrect, when perhaps each term might serve well in certain situations. Blatantly incorrect terms should clearly be rejected, but criticizing other’ preferred terms because they do not match one’s own is not the best way to advance our profession. Rather, we should view terms as an array of tools, and make it our goal to load up our tool belts as much as possible. Furthermore, our passion for whichever is our preferred terminology is a sign that we take our jobs seriously.
In my view, we should constantly evaluate the terms we use, be willing to change them if we discover more apt ones, and openly share terminology with others. We might have to occasionally agree to disagree, but we should also accept that rarely is a single term the most suitable in all situations. Moreover, it is in an interpreter’s interest to be flexible and adaptable. After all, the ability to adapt terminology to varying contexts is what distinguishes us from machine translation,which is something that translators, and perhaps interpreters, too, must do to maintain their livelihood. To keep the peace, we might still want to avoid debating politics and religion amongst ourselves, but freely discussing terminology will certainly benefit our profession. Just don’t ask me how to say “coroner” in Spanish if you are in a hurry.
The author is a state and federally certified court inerpreter in Los Angeles. He is also an ATA certified Spanish-to-English translator.