Miento, miento - College of the Holy Cross
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Transcript Miento, miento - College of the Holy Cross
Hispanics and the Law in
Massachusetts
College
of the Holy Cross
February
Class
14, 2008
5
Robert
LeRoux Hernandez,
Instructor
Language and justice
Miento, miento
Imagine
You
are an attorney
representing a defendant in a
capital case
Your
client is Spanish-speaking
There
is a court interpreter, but
you do not have an interpreter
On the stand
Your
client is on the stand and has
answered the prosecutor’s difficult
questions
Suddenly
your client blurts out,”miento,
miento.”
The
court interpreter translates: “I am
lying! I am lying!”
What do you do?
Move
for a mistrial?
Stand
up and object to the
interpretation?
On
what grounds?
On what grounds?
Your
In
client is of Columbian origin
her idiom, when one misspeaks for
whatever, even completely innocent
reason, one says, “miento, miento,”
which in all other parts of the Spanishspeaking world means, “I am lying, I
am lying.”
What do we know?
There has been a significant change in the
composition of Massachusetts
Hispanics constitute a significant portion of the
population; they are a majority in some areas
A significant portion of the Hispanic population
is only marginally bi-lingual or is mono-lingual
Spanish
Language is central to Hispanic Identity
How do Hispanics Interact
with the law?
Just
like everybody else
Obeying the speed limit
Paying taxes
From time to time in court
Courts
Take away liberty
Take away property
Take away children
Courts are a big deal
Power of judges and juries
Right to a fair trial
Right to a jury of one’s peers
Right to understand proceedings which may
affect life, liberty or happiness
Equal protection depends on equal access to
justice
The law and language
The
law is language
The
law is applied to through language
Judge
Parties
Juries
For
linguistic minorities, difficulties with
English will interfere with access to and
quality of justice
And the exclusion of Bilingual Jurors
Hernandez v. New York
Key terms and concepts
Grand Jury/ Petit Jury
Peremptory challenges
Challenge for cause
Batson v. Kentucky
Majority Opinion
Plurality Opinion
Concurring Opinion
Dissenting Opinion
Jury challenges
Challenge
for cause-
Unlimited
Must
show potential juror is not
unbiased
Peremptory
Limited
challenge-
number
Any reason or no reason
Batson v. Kentucky, 476 U.S.
79 (1986)
Cannot
use peremptory challenge
on the basis of race
Rights
of parties and of potential
jurors affected
Hernandez v. New York
Indicted by grand jury, Hernandez was tried, and
later convicted, on two counts of attempted murder
and possession of a weapon
During jury selection, the prosecutor used
peremptory challenges to exclude two bilingual,
Latino jurors from the jury.
no Latino jurors remained on the jury that convicted
Hernandez
Prosecutor in Hernandez
In
response to Batson challenge:
felt "very uncertain" that they would be able to
listen to and accept the interpreter's rendition
of testimony given by Spanish-speaking
witnesses
objected to their demeanor during their
responses to his questions
Concurring Opinion
Justice
Sandra Day O’Connor
Joined
by Justice Antonin Scalia
No
rule of disproportionate
effect
Joined
plurality who did not find
discrimination in this case- total
5 votes
Plurality Opinion
Justice Anthony Kennedy wrote it
Joined by Chief Justice Rehnquist and Justice
David Souter
No direct evidence of ethnic discrimination
Prosecutor presented non-discriminatory
rationale
Deferred to trial judge, but there could be
discriminatory exclusion on basis of language
Dissenting Opinion
Justice
Joined
John Stevens wrote opinion
by Justices Thurgood
Marshall and Harry Blackmun
A majority held
You
can exclude jurors for
bilingualism
A larger majority held
You
can’t exclude jurors on the
basis of ethnicity
Considerations
Right
to be on juries
Right
to a jury of one’s
peers
Student Presentations
S.
2198
Grace
Miller – Pro
Sara Greene – Con
Collection
of information by
Jury Commissioner
Perea: Fear of Spanish
"the interpreter often plays a decisive role in controlling the speech of
witnesses or defendants who are testifying on the stand.”
Requests for clarification regularly made by interpreters alter the
relationship between interrogating attorney and witness
may change a jury's perception of both the attorney and the witness.
Interpreter's linguistic decisions alter the meaning of testimony given by
witnesses
the interpreter is a human participant and a shaper of the meanings given
to testimony in languages other than English.
variability proven to inhere in the interpretation process should make us
wary, then, about attributing finality and certainty to the official
interpretation of testimony.
If bilinguals can be excluded
from juries . . .
It’s all up to the interpreter
In the best of all possible worlds, there is a
possibility that interpreters could provide access to
equal justice for legal minorities, but that
possibility is so small as to be for all practical
purposes unrealistic.
While we fix the bigger problems, we must do what
we can do to obtain the best possible interpretation
Interpreters & Translators
What’s the difference?
Interpretation
the transfer of meaning from a source language to a
receptor or target language
allows oral communication between two or more
persons who do not speak the same language.
Who needs interpreters?
De Jonghe, Table III, Interpreter Use by Language US
District Courts, 1988
Spanish: 46,064
Haitian creole: 538
Cantonese: 520
Arabic: 507
…
Turkish: 1
Court Interpreters
In a court of law, interpreters make it possible
for non-English-speaking defendants and
witnesses to "hear" the proceedings in which
they are involved, and for judges, attorneys,
court reporters, and other key courtroom
personnel to understand the testimony of nonEnglish speakers.
Modes of Interpretation
1.
Sight translation
2.
Consecutive interpretation
3.
Simultaneous interpretation
Sight translation
the
oral rendition into the
target language of
material written in a
source language (e. g.,
letters, invoices)
Consecutive interpretation
requires
that the source language
speaker pause at regular intervals
to allow the interpreter to convey
the target language interpretation
is used for on-the-record
testimony (i.e., when a nonEnglish-speaking person testifies)
Simultaneous interpretation
demands
that the
interpreter listen and
speak concurrently with
the primary speaker
whose monologue is
being translated
Language and culture
Bilingualism
Biculturalism
Language as a Guide to
Social Reality
Sapir- see DeJonghe Article
No 2 languages sufficiently similar to represent the
same social reality
Users of different languages perceive the world
differently
Not the same world with the same labels attached
At minimum
Language expresses perception and
Categorization of experience
Metaphor for cultural and personal experience
Each language composed of different set of
metaphors, based on cultural and personal
assumptions and experiences
Very similar to very different
Solutions
English only
Quasi-justice, unequal access to justice
Parallel justice-separate and equal?
Something else?
Latinos need access to professionals
There are not enough to go around
How do we get around it?
Biculturalism
Ability
to interpret experiences in a
manner appropriate to both cultures
Culture:
the way of life of a people or society, including
its rules of behavior
Economic, social and political systems
Language, religious beliefs, laws
Culture
Acquired,
socially
transmitted and
communicated in part by
language
Bilingualism
is not de
facto biculturalism
Monoculturalism
Implies
ethnocentric interpretations
regardless of the language or context of
experiences to be interpreted
Interpretation
requires deep familiarity
both with languages involved
(bilingualism) and with respective cultures
(biculturalism)
Biculturalism
Significant role in preserving rights of nonEnglish speakers
Proper interpretation of speech
Transpose it with its entire semantic, emotional and
aesthetic baggage into a language using completely
different modes of expression
Convey exact meaning and intent of the speaker
Interpretation (DeJongh)
Source
Language
Analysis
Transfer
Translation
to Receptor
Language
Restructure
Interpretation (DeJongh)
Source
Language:
Hello
Other
choices: qué
hay? Que
tal?Diga.
Oigo?
Bueno?Man
de
Translation
to Receptor
Language:
Hola
Restructure:
Decision to
distinguish
among forms
of greeting
available
Analysis:
Friendly
greeting on
arrival
Transfer:
Spanish
Sensitivity to nuance
All
aspects of
communication
Words
Tone
Changes
of intonation
Facial cues
Gestures
Gestures
Not
same significance across
cultures
V
sign
OK
Twirling
finger around ear
Equivalence is not word
for word
False
friends/palabras
engañosas:
Notary
Notario
Yo
lo ignoraba
Interpreter: I ignored it
Context
Situation
in which words
uttered
Intention of the speaker
How something is said
The interpreter’s words are
the only record kept
Right
to appeal?
Force-fitting
everything into 1
person’s version of
what was said
Interpreters in
Massachusetts
One of main MAHA issues in the 1990s
SJC Committee to Study Racial and Ethnic Bias in
the Courts- 1994 Report
Mass. Bar Association Study: Ensuring Equal Justice
(1996)
Everyone seems to agree there is a severe shortage
Useful information about law
and justice not available
AT&T Phone Line
Translation of 209A domestic violence forms and
guides
Multilingual signing
Interpreters not available
when needed in court
White attorneys: 40%
Black/African American attorneys: 58%
Hispanic attorneys: 71%
Asian American attorneys: 61%
White judges: 50%
Minority judges: 70%
Legal proceedings held
without qualified interpreters
Judges routinely use private volunteers, family
members, inmates, etc.
General agreement judges willing to appoint
interpreters at least sometimes but Hispanic
attorneys more willing to voice opinion that this
never or seldom happens
Inability to speak English
negatively affects cases
“Usually or always”
White attorneys 26%
Black/African American: 43%
Hispanic: 62%
Asian American: 74%
White judges: 6%
Minority judges: 28%
Cultural Barriers
Contribute to misunderstanding
Frequently misunderstood
Eye contact
Ridiculing by court personnel
What about outside the
courts?
Access to
lawyers
Depositions
Record
on appeal
Is access to equal justice possible for
Spanish-speaking residents?
Inaccessibility
Exclusion
to courts
from juries
Unavailability
of properly
trained interpreters
Limitations
of
interpretation