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Like lay judges, court interpreter system still in nascency

by Eric Johnston

Last in a series

OSAKA — With the new lay judge system set to debut May 21, legal professionals, law enforcement officials and the media are busy with final preparations.

But Mamoru Tsuda, a professor at the Osaka University Global Collaboration Center, warns that one very important group has been largely absent from the official discussions and decisions.

“The amount of attention paid to the needs of court interpretation has been insufficient,” said Tsuda, who is also one of Japan’s most experienced court interpreters, having been involved in over 100 trials during the past two decades interpreting in Tagalog and in English.

When the new system is in place, six lay judges and three professional judges will be seated on the bench. Should they serve in cases where foreign defendants with limited Japanese-language ability are involved, they will see at least one court interpreter sitting next to the clerk working on a translation of what is being said by all parties involved. But their role goes way beyond mere oral interpretation during the trial. Court interpreters must attend pretrial meetings with lawyers, and often with foreigners in question, and translate many pages of written legal documents into Japanese or a foreign language in advance of the trial as well as during it.

“In the case of trials involving foreigners that require interpretation, the courts must first secure an interpreter. But this can take three or four days, which leaves the interpreter little time to prepare before the first session,” Tsuda said.

The advent of the lay judge system has raised a number of practical concerns about how court interpreters will function in the new environment.

Under the new system, trials will be based on oral questions and arguments, which should make it easier for the average person to understand what’s going on. But this also means court interpreters will now have to interpret more verbal exchanges between all courtroom participants. Interpretation of dialogue and immediate responses to ad-libbed questions will become much more common.

Attorneys, unused to arguing cases in plain language, may find they have to repeat themselves or rephrase their statements not just for the benefit of the lay judges but also for the interpreters, Tsuda noted.

And this raises the possibility of increased errors and omissions if only a single interpreter is being used.

“Asking one interpreter to handle all interpretation and translation is a bad idea. Ideally, the court will secure three interpreters — one to translate from a foreign language into Japanese, one to translate Japanese into a foreign language, and one to keep track and make sure nothing is missed,” Tsuda said.

But while team interpretation may work for courts in cities with large numbers of people fluent in the necessary foreign language, finding three competent interpreters to serve throughout a trial in smaller cities or in cases involving a foreign language for which there are few interpreters in general, is likely to prove difficult.

Then there are technical issues. “If the courts go with interpretation via wireless headsets, they should not use the kind of one-ear receivers common for simultaneous interpretation, but a headset covering both ears. If two languages are entering the ear at the same time, the interpreter will have a hard time concentrating and may either misinterpret something or not hear what’s being said in the original language,” Tsuda said.

Finally, the issue of interpreter competence could prove especially problematic. Under the lay judge system, it’s possible that one or more of the lay judges will be as, if not more, fluent in the foreign language than the interpreter.

Will a lay judge be bold enough to interrupt court proceedings and ask for a correction if they think the interpreter has made a mistake either from the foreign language to Japanese or from Japanese to the foreign language? Or will judges be forced to intervene if a dispute arises between a bilingual lay judge and the court interpreter over what was said, or if the foreign plaintiff or defendant complains in open court to the bilingual lay judge about the interpreter’s ability?

Unlike the United States, for example, there are no precedents for these kinds of problems in Japan. “In America, lawyers for the prosecution and the defense would likely learn during juror selection if any of them are fluent in the language of the defendant or the plaintiff. Interpreters must be very careful, because misinterpretation of key statements opens up the possibility of a mistrial,” said S. McIntire Allen, an Osaka-based American attorney who is licensed in California and New York.

David Makman, a San Francisco-based attorney who has experience dealing with court interpreters, also noted that the Fifth Amendment in the U.S. Bill of Rights grants defendants the right not to take the stand and testify under oath and refuse to answer question on grounds that their answers could be incriminating.

“Often, criminal defendants take the Fifth and say nothing that will incriminate them. Therefore, they usually do not need an interpreter except to help prepare their defense and to understand the proceedings around them,” he said in an e-mail interview with The Japan Times.

One member of the Osaka Bar Association, who requested anonymity, said answers to the above questions will likely depend on how much control judges exercise in the courtroom over the lay judges, but admitted that decisions about what constitutes fair translation or interpretation may well be subjective.

“Many judges in Japan speak English, and if that’s the language being used, they’ll have a better ability to understand what kind of mistakes or omissions are being made. But that’s not the language of most court cases in Japan. Even if they don’t understand the language being spoken, judges may decide the interpreter is doing a good enough job and that, although there are mistakes, they aren’t serious,” the lawyer warned.

Makman also noted that California has published a 65-page detailed set of professional standards and ethical guidelines for court interpreters that answer many questions Japanese court interpreters are likely to have about the new lay judge system.

The manual covers everything from paraphrasing guidelines to nonverbal communication to relationships with the jurors to dealing with the press. Tsuda said the Supreme Court has promised to publish something similar, but has yet to do so.

Last year, according to the Supreme Court, interpreters were used in 128 out of 2,208 trials involving offenses that will be tried under the new lay judge system.

To help prepare court interpreters for the new system, graduate students at Osaka University, where Tsuda teaches a course in court interpretation, the only one of its kind in Japan, have just put together a Chinese-language instructional DVD of a mock lay judge trial involving Japanese-Chinese language interpretation.

The DVD, which has been posted on YouTube, offers practical advice and points out potential problems interpreting under the lay judge system, such as not being able to see a PowerPoint presentation by the attorneys.

Similar DVDs in English and Korean are now being prepared, and will hopefully be released soon, Tsuda said.

According to the Supreme Court, as of April 2007, there were 3,903 people nationwide registered for courtroom interpretation into 55 foreign languages. That same year, 10 major languages were used in 91 percent of cases involving 5,767 foreigners. Chinese was used for nearly a third of the total, with the figure shooting to nearly 57 percent when including Korean and Tagalog. English-language interpretation was used 3.9 percent of the time.