Doesn’t it seem ironic to begin a
story about foreign language interpreters with a French legal term? That may be, but it is necessary. Failure to voir dire could jeopardize the successful appointment of a foreign
language interpreter at the time of trial. The term voir
dire means “to speak the truth,” and while most often used when referring
to the juror process, it is important to understand how it applies to foreign
language interpreters.
Under the court rules, there are
three levels of interpreters that a court can use: certified; qualified; and
(in limited cases) those neither qualified nor certified. A court must use the highest level reasonably
available based on the language required, the emergency nature of the
proceeding, and the geographic availability of the interpreter. Interpreters are required to be registered
and must follow the Professional Code of Conduct approved by the State Court
Administrator. Each registered
interpreter is issued a card identifying their skill level, as an easy way for
the court to confirm their credentials.
The certified foreign language interpreter is the preferred (or “gold”)
standard. MCR 1.111(A)(4) lists in
detail the requirements that must be met to attain this status. These requirements verify for the court the
foreign language interpreter’s knowledge of the language and interpretation
skill by successfully passing a three-part, nationally standardized
examination. It does not determine whether
there are conflicts of interest for this foreign language interpreter based on
the facts of the case and the parties involved.
The court should ask the individual to present their registration card
and then move on to the conflict of interest voir dire.
A qualified foreign language interpreter can be used when a certified
interpreter is not reasonably available and is what if referred to as the
silver standard. MCR 1.111(A)(7) lists
in detail the requirements for this status, absent the fact that qualified
interpreters have not passed a three-part oral examination of their language
translation skill. This could be because
theirs is a rare language with no nationally standardized test or because they
have not yet taken the examination. The
court should ask the individual to present their registration card but move on
to voir dire for both skill level and
conflicts of interest. Any foreign language
firm interpreter should be voir dire’d
as if they are qualified.
If neither a certified nor
qualified foreign language interpreter is reasonably available, the court may
appoint a noncertified, nonqualified interpreter. This happens most often when the hearing is
urgent and the language or dialect is very rare. There will not be a registration card for
these individuals and, like those qualified to interpret, the court must voir dire for both skill and conflicts
of interest. The court must conduct a voir dire, including statements about
the gravity of the proceedings, rarity of the language, and the ability of the
interpreter to convey the intent and content of the speaker’s words on the
record.
Employees of the court used for
foreign language interpretation are also subject to these standards of voir dire. Additionally, if the employee is less than
certified, the SCAO must approve their appointment and the regional office must
have a plan on file for how they will become certified.
Finding a conflict of interest
does not automatically disqualify the individual from serving as a foreign
language interpreter. The court should
use all reasonable efforts to avoid potential conflicts of interest when
appointing any person as an interpreter, regardless of their credential level. If the court uses that person, it must state
its reasons for the appointment on the record.
Voir Dire Chart
Type
of Interpreter
|
Skill
(Competency)
|
Conflicts
of Interest
|
Certification
Plan Filed with Regional Office
|
Certified
|
N
|
Y
|
N
|
Qualified
|
Y
|
Y
|
N
|
Non-certified/Non-qualified
|
Y
|
Y
|
N
|
Employee
|
Y,
if less than certified
|
Y
|
Y,
if less than certified
|
Firm Interpreters
|
Y, regardless of certification
|
Y
|
N
|
For this purpose, SCAO has also developed a resource
outlining potential voir dire
questions for competency and conflicts of interest. The Suggested
Voir Dire Questions for Interpreters, along with additional language access
information, is located on the Foreign
Language Resources page.
Stacy Westra is a
management analyst in the Trial Court Services division of the State Court
Administrative Office. She previously
worked in the Kent County Clerk’s office.
She has a Masters in Justice Administration from Norwich University.