Interpretations Raise Cost of Prosecutions

Disagreement over a single word during a trial two years ago led to an Arkansas Supreme Court ruling that requires interview transcripts to be done by state-certified translators in order to be admissible as evidence in court. Non-English transcripts are now expensive enough to produce that Washington County prosecutors are avoiding using them whenever possible.

Prosecuting Attorney John Threet said he appreciates the goal of removing barriers to communication and ensuring everyone receives fair and equal access to justice, but the cost came with sticker shock.

At A Glance

Interpreting Justice

The Arkansas Administrative Office of the Courts provides interpreting services for individuals who have a limited ability to understand English, are deaf or hard of hearing, or are unable to speak. The office is charged by law and Arkansas Supreme Court with certifying foreign language interpreters for individuals or witnesses with limited English proficiency who appear in the state and local courts. The office provides interpreting services during court proceedings or directly related actions. The office maintains a registry of certified court interpreters who may be contracted directly by attorneys, law enforcement officers, jail officials, other state agency employees, social workers or mental health workers for interpreting services.

Source: Arkansas Administrative Office Of The Courts

“I do understand the need to have a uniform rule on who can interpret, but it’s horribly expensive, especially in jurisdictions with large minority populations,” Threet said.

Northwest Arkansas has substantial Spanish and Marshallese speaking populations. Defendants have appeared in court speaking Laotian, Vietnamese and a variety of Pacific Island languages.

The upshot is a single transcript by a state-certified interpreter costs the prosecutor’s office 45 to 55 cents per word, Threet said. Transcripts for two recent cases cost about $5,000 each to produce.

Public defenders represent many of those with limited English skills who end up in court. Didi Sallings, executive director of the state Public Defender’s Commission, said the extra cost of requiring certified translators to transcribe documents is justified.

“I think it’s the right thing to do because anybody could hold themselves out as a translator. I have people on my staff who speak Spanish, but that’s not what they do for a living and they might misinterpret something,” Sallings said. “A certified interpreter has been tested and knows the legal terms in a specific language. For instance, if you are from northern Mexico you speak one dialect and if you’re from southern Mexico, you speak another. If you’re certified, you know the difference. If you’re not certified, you might misinterpret what is being said.”

Mara Simmons, director for Court Interpretation Services at the state Administrative Office of the Courts, said there is more expense but the decision reflects the state judiciary’s commitment to fairness. The change was based on a 2010 change to the rules of evidence.

“What was happening before is that the transcripts were being translated also by the interviewing officer and many times the translations were very incorrectly done. There are many nuances in language, and so you needed a language expert to do the translation who was also neutral and objective,” Simmons said. “All we want to do is make sure that the outcome is truth. The only way you can have due process is to be able to see everything transparently.”

Simmons said some police departments now use certified interpreters on the front end, during the interrogation process, and record the encounters. The interpreter can then check the transcript for accuracy.

“It’s very inexpensive to do it that way,” Simmons said.

Threet said prosecutors traditionally had someone on staff to do day-to-day verbal translation, in addition to other duties, and that person would do transcripts for trials as well.

That changed in December 2011. A Washington County jury found Jose Luis Mendez guilty of rape, attempted murder, aggravated residential burglary, and aggravated assault for an attack on his former girlfriend. Mendez was sentenced to 60 years in prison. Mendez appealed.

Mendez was having an affair with a Fayetteville woman in 2009. She wanted to end the relationship, and he believed she was seeing another man, according to testimony from the trial.

In May 2009, Mendez entered the woman’s apartment, choked her, hit her on the head and raped her while she was unconscious. The woman was examined at Washington Regional Medical Center, where a doctor found her voice box was fractured, she’d been choked to the point of passing out and had been raped.

During Mendez’s trial in May 2010, jurors received two English translations of a Spanish-language interview a detective conducted with Mendez. Mendez told the detective he grabbed his girlfriend’s neck. The detective asked him if he tried to kill her, and Mendez asked why he would kill her. The detective said, “Grabbing her by the neck?”

According to the prosecution’s translator, an employee of the Prosecutor’s Office who wasn’t a certified translator, Mendez then said, “I did that.” According to the defense’s translator, who was certified, Mendez said, “I didn’t do that.”

The judge admitted both translations, concluding the jury could decide which was more credible. In a unanimous opinion in December, 2011, the Arkansas Supreme Court ruled the judge erred and should have allowed only translations by state-certified translators.

Mendez later pleaded guilty to avoid a second trial. He was sentenced to 40 years in prison.

The state Administrative Office of the Courts certifies all translators. Agencies requiring certified translators then contract with someone on the state registry.

“We used to argue interpretations with the other side,” Threet said. “Now, if you want to argue the accuracy of a translation, you have to go get an AOC certified interpreter.”

For prosecutors, the added cost comes out of their office’s annual budget. Sallings said public defenders have not been as affected by the change because prosecutors tend to provide the bulk of the evidence in most cases and are responsible for having it properly prepared.

“We don’t have that many that we admit in court,” Sallings said. “Most of the statements are taken by the prosecutor’s office so we don’t have to transcribe them, they would transcribe them.”

A related issue is the decision to use transcripts must be made very early in a case, well before trial, and cases often end in a plea bargain.

“It’s very expensive, a lot of taxpayer dollars, and it takes months to get it accomplished,” Threet said. “You have to spend the money now and get it done and, if there’s not a trial, then you’ve spent a lot of money for no reason.”

Threet said his deputies try not to use interpreted documents unless absolutely necessary. The last time one was used in Washington County Circuit Court since the Mendez case was at the trial of Sergio Andrade in December.

Andrade, 52, was found guilty of eight counts of attempted capital murder, including wounding a Fayetteville police officer, during a standoff at an apartment complex. He was sentenced to 147 years in prison.

Prosecutors have one transcript prepared for an upcoming trial and are looking for a certified translator to do two others.

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