AN ASIDE

Long ago, and far away, as almost never happens (haha) an interpreter was caught off-guard.

Prosecutor: “Do you understand the charge against you?”

Defendant: “Yeah well sure but what I don’t understand is why I am even being charged with this because the cops even told me right there that she wasn’t saying I did anything and she wasn’t gonna, like, help them press charges or whatever because when I got there -“

Defense attorney, in defendant’s language: “Don’t say anything more!”

Interpreter: Your Honor the defense attorney just stated to the defendant, ‘don’t say anything more’ and the interpreter would like guidance as to whether to state on the record her interpretation of the defendant statement, which if we were working physically in court, may have been stated as an aside to the attorney.”

What then ensued was a perhaps ten or fifteen minute emotional argument about whether the defendant should be placed in the position of the English-speaker, because if such a person blurted out anything on the record, it would be on the record. Then again, their attorney would have cut them off. The defense attorney was scolded for using non-English in court. The judge stated it was hard for him to rule without knowing the content of the utterance. Did he say he doesn’t understand why he wasn’t arraigned last week, or was he talking about the content of the case?

The defense attorney stated that he was discussing the facts of the case and specifically his discussion with police officers, which could be prejudicial to his defense. The prosecutor stated that what was said was already on the record, albeit not in English, but anyone could easily play the recording and have access to what was said. He cited the famous “you can’t unring the bell” theory, and argued that it might as well get interpreted on the record. Defense objected. This interpreter had to keep interrupting people to let me interpret as they argued, and in the end, the judge did order me to go ahead and say what the defendant had said.

I made a split second decision to go from memory, and in hindsight I should have asked to have it played back. Nowadays, I am more likely to just blurt out whatever the defendant says, because it is not my place to screen anyone or comment on the evidence, but it is quite common in court that whenever a defendant starts to speak of the facts when it is not in their best interest, the defense attorney, or even the judge, will cut them off – a few words into it – and advise them to direct their statement to their attorney off the record. So it is not an easy or simple decision for the interpreter in the moment. And it is complicated by the fact that the English-speakers don’t know whether to cut off anyone’s speech until the interpreter starts to render it. I have certainly been cut off by judges midstream and ordered to “stop interpreting” because most judges don’t want a defendant testifying against himself out of ignorance, and prefer to give them the full opportunity to meet with their attorney before choosing whether to testify.

To add to the awkwardness, the prosecutor then – to my mind – mischaracterized what I had interpreted, when he gave his bail setting argument. He stated that it was of great concern that when the defendant chose to “talk about the facts, he didn’t make a blanket denial, but stated that he understood that the alleged victim was not going to cooperate with the police.” This led to defense attorney to very politely but fairly state that “due to the length of time between the utterance and the interpreter’s rendering of my client’s statement, I believe I must take exception to it, because I understood that he stated that the witness told the police at the scene that he hadn’t done anything, not that she was not going to “cooperate” in any potential prosecution.” I was left wondering whether I had said “cooperate” – I distinctly remember the defendant stating that she wasn’t going to “press charges” but I don’t remember saying “cooperate”. Or did I say cooperate, and then correct it to press charges? Without saying, “interpreter correction”? Hmmm. I tried to run through my back memory of what I had said, and do a word search for cooperate. Had I said that?

Here is my problem, and if you are an interpreter, it may be yours as well. In trying to harken back and remember what exactly the defendant had said, and what exactly I had said in rendering it some time later, I was sinking into the quicksand of having said it all. I myself had heard and understood everything said in both languages, and I myself had said everything that had been said in both languages. I had said press charges. I had said nothing happened. I had said the witness wouldn’t cooperate. I had said it all.

Luckily, perhaps, for me, my rendition on the record of that disputed interpretation, memorable as the one and only “challenge on the record” of my career (to date) became a moot point, so any error I may have made cannot be considered material, as it did not affect the outcome of the hearing. The judge chose not to impose the $25,000 bail that the prosecutor was requesting. The defendant was ordered released on his own recognizance, meaning without bail. The judge cited several factors in play: his lack of a criminal history, his decades-long stable work history, his having shown up for all his court appearances, and the extended length of time since the alleged crime without any further incidents while he was out of custody. The judge ruled that under Criminal Rule 3.2, which requires the “least restrictive conditions” awaiting trial, taking into consideration public safety, interference with justice, and the likely commission of another violent crime, by putting a written No Contact Order in place, justice would be served and the community safeguarded while the defendant awaits the resolution of his case, without imposing bail. So it turned out that my interpretation was just an aside.

And here is another aside: In future, I will blurt until instructed not to blurt.