UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

English as a second language problem in the Canadian charter of rights and freedoms Krasnick, Harry 1987

Your browser doesn't seem to have a PDF viewer, please download the PDF to view this item.

Item Metadata

Download

Media
831-UBC_1987_A2 K72.pdf [ 9.34MB ]
Metadata
JSON: 831-1.0078247.json
JSON-LD: 831-1.0078247-ld.json
RDF/XML (Pretty): 831-1.0078247-rdf.xml
RDF/JSON: 831-1.0078247-rdf.json
Turtle: 831-1.0078247-turtle.txt
N-Triples: 831-1.0078247-rdf-ntriples.txt
Original Record: 831-1.0078247-source.json
Full Text
831-1.0078247-fulltext.txt
Citation
831-1.0078247.ris

Full Text

ENGLISH AS A SECOND LANGUAGE PROBLEM IN THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS by HARRY KRASNICK B.A., Marquette U n i v e r s i t y , 1963 M.A., U n i v e r s i t y of C a l i f o r n i a , . 1 9 6 6 LL.B., The U n i v e r s i t y of B r i t i s h Columbia, 1978 M.Ed., The U n i v e r s i t y of B r i t i s h Columbia, 1981 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF EDUCATION in THE FACULTY OF GRADUATE STUDIES Department of Language Education We accept t h i s t h e s i s as conforming to the r e q u i r e d standard THE UNIVERSITY OF BRITISH COLUMBIA MAY 1987 © Harry K r a s n i c k , 1987 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department The University of British Columbia 1956 Main Mall Vancouver, Canada V6T 1Y3 Date r-7-os~r? DE-6(3/81) Abstract A research project was designed to i d e n t i f y and analyze the issues which are involved i n guaranteeing the equal protection of the law i n Canada with respect to the r i g h t to be informed of the r i g h t to counsel upon detention or ar r e s t and the r i g h t to the assistance of an i n t e r p r e t e r i n l e g a l proceedings i n the case of non-native speakers of English. A comparative, m u l t i d i s c i p l i n a r y study design allowed the dif f e r e n c e s among s o c i a l science views, p r a c t i t i o n e r s ' commonsensical knowledge, and l e g a l viewpoints as expressed i n reported judgements to be i d e n t i f i e d . Each of the three sources of viewpoints on cross-c u l t u r a l i n t e r r o g a t i o n and courtroom i n t e r a c t i o n was examined with a view to determining the range of phenomena recognized. The study d i d not attempt to evaluate the s o c i a l science studies on t h e i r own terms, measure the d i s t r i b u t i o n of commonsense knowledge among p r a c t i t i o n e r s , or determine the state of the law on any p a r t i c u l a r point. The goal was rather to compare the breadth of the l e g a l system's v i s i o n with that of s o c i a l s c i e n t i s t s and p r a c t i t i o n e r s , i n order to determine whether there w i l l be a need to supplement the court's view. The r e s u l t s suggested that court i n t e r p r e t e r s vary g r e a t l y i n t h e i r o v e r a l l competence, i n c l u d i n g language a b i l i t y , and i n t h e i r understanding of what t h e i r r o l e i s . Training and c e r t i f i c a t i o n of court i n t e r p r e t e r s appears to be the only solution which w i l l s a t i s f y the c o n s t i t u t i o n a l guarantee of equal prot e c t i o n . Informing the suspect of h i s r i g h t to counsel presents substantial l i n g u i s t i c and c u l t u r a l problems, only some of which are addressed by the i i i c ourts. In l e g a l proceedings, the r i g h t to the assistance of an i n t e r p r e t e r r a i s e s fundamental questions concerning the point at which the r i g h t to an i n t e r p r e t e r a r i s e s and how entitlement i s to be determined. P r a c t i c a l solutions implied by the research include e s t a b l i s h i n g a b i l i n g u a l courtroom observer program to safeguard against inadequte i n t e r p r e t a t i o n going unnoticed; cautioning the suspect as to his r i g h t to counsel i n h i s native language rather than i n English, perhaps through audio tape recordings; and e s t a b l i s h i n g a combination t r a n s l a t i o n and l e g a l advice center which could be contacted by c a l l i n g a t o l l - f r e e telephone number such as 800-ESL-HELP. i v Table of Contents CHAPTER ONE: INTRODUCTION AND METHODOLOGY 1 CHAPTER TWO: THE SOCIAL ROLE OF THE INTERPRETER 14 CHAPTER THREE: LINGUISTIC ASPECTS OF INTERPRETATION 30 CHAPTER FOUR: INTERCULTURAL INTERROGATION 64 CHAPTER FIVE: COURTROOM INTERACTION 106 CHAPTER SIX: CONCLUSIONS AND RECOMMENDATIONS 166 BIBLIOGRAPHY 194 CASE LIST 198 V Acknowledgement No one gets through twelve years of u n i v e r s i t y studies without r e c e i v i n g considerable assistance of various forms: i n t e l l e c t u a l , emotional,and moral. I am pleased to have the opportunity to record my indebtedness to Professors Mary Ashworth and Bernard Mohan, i n the Uni v e r s i t y of B r i t i s h Columbia Department of Language Education; and Professors Vincent D'Oyley and Walter Werner, i n the Department of S o c i a l and Educational Studies and the Centre f o r the Study of Curriculum and Instruction, r e s p e c t i v e l y . I hope I have accepted t h e i r g i f t s as graciously as they were given. 1 CHAPTER ONE INTRODUCTION AND METHODOLOGY 2 The Canadian Charter of Rights and Freedoms (Charter), a part of the new Canadian c o n s t i t u t i o n , poses a challenge to c i v i l l i b e r t a r i a n s and second-language scholars a l i k e . The Charter establishes r i g h t s which require that p a r t i c u l a r l i n g u i s t i c and communicative actions be performed, and s t i p u l a t e s further that every person, regardless of ethnic o r i g i n , receive the equal p r o t e c t i o n and benefit of the law; but i t o f f e r s no p r a c t i c a l guidelines f o r determining whether those r i g h t s have i n f a c t been implemented i n any p a r t i c u l a r case. Thus i t i s l e f t to advocates and j u r i s t s — and perhaps applied l i n g u i s t s — to int e r p r e t the meaning of the c o n s t i t u t i o n a l guarantees. The research described herein was undertaken i n the b e l i e f that the s p e c i a l problems faced by non-native speakers of English (ESL-speakers) and, indeed, a l l who are not native members of the Western anglophone speech community, warrant s p e c i a l a t t e n t i o n i f they are to receive the protection intended by Parliament. The courts, l e f t to themselves, w i l l do t h e i r best, but the law schools which the judges attended taught them about neither second-language and i n t e r c u l t u r a l communication issues, nor e t h n i c i t y and t r a n s l a t i o n and s o c i a l i n t e r a c t i o n . The broad aim of the research was to f i n d a way wherein s o c i a l s c i e n t i s t s ' t h e o r e t i c a l and empirical e f f o r t s could be brought to bear on the questions that a r i s e i n securing f o r ESL-speakers the r i g h t s which the government of Canada has stated they s h a l l enjoy. T r a d i t i o n a l l y , there are two ways i n which a court can take i n t o account a n c i l l a r y matters which bear on the fact-patterns with which the court must d e a l . One very f a m i l i a r method i s through the use of expert witnesses, i n d i v i d u a l s who have established c r e d e n t i a l s i n t h e i r special areas which allow the court to accept and place some weight on t h e i r 3 opinions regarding issues at bar. As i s well known, both sides i n a dispute are l i k e l y to tender expert opinion evidence, so that the judge i s faced with the task of comparing and choosing between opposing p r o f e s s i o n a l judgments i n areas i n which he himself usually has no background at a l l . In p r i n c i p l e , any issue can be the subject of experts' testimony, and the opinions of any expert can be countered with those of another expert (and hence the c y n i c a l layman's observation, "There are no experts"). A second way i n which the judge can become cognizant of relevant f a c t s which are not proved d i r e c t l y through eyewitness testimony or other evidence, i s by means of " j u d i c i a l n o t i c e . " Very simply, t h i s means that the court can accept as not r e q u i r i n g proof i n the court the t r u t h of any p r o p o s i t i o n which i s either common knowledge or ascertainable through reference to established, r e l i a b l e sources. For example, when the researcher once sought to have a t r a f f i c charge dismissed on the ground that every element of the offence had not been proved by the Crown, arguing that no evidence had been led to show that the a l l e g e d speeding had taken place a f t e r sunrise—which was one of the elements of the offense as contained i n the s t a t u t e — t h e judge had only to take j u d i c i a l notice of the f a c t that at nine i n the morning at that time of year, the sun has i n f a c t already r i s e n . What does the concept of common knowledge encompass? Does i t say anything about the l i n g u i s i t i c and c u l t u r a l issues which are involved i n ensuring that ESL-speakers suffer no disadvantage r e l a t i v e to others i n r e c e i v i n g the b e n e f i t s which the r i g h t s speak of? Common knowledge can be approached both i n terms of what i t includes as i t s content, and with regard to how, and how well, that information i s organized. The 4 operational goal of the present research p r o j e c t was to e s t a b l i s h and organize what s o c i a l s c i e n t i s t s have said about the issues of i n t e r e s t , and compare that with what the courts have s a i d . As a kind of check, and a l s o as a possible source of a d d i t i o n a l i n s i g h t s , the views of various types of p r a c t i t i o n e r s working within the l e g a l system were determined through interviews. As such, the study i s e s s e n t i a l l y conceptual, but there was a c l e a r i n t e n t i o n as well to a r r i v e at the type of analysis which would have p r a c t i c a l uses i n i n t e r p r e t i n g the Charter. In the nature of the case, i t would be advocates of ESL-speakers' r i g h t s who would be most concerned with seeing to i t that what i s c o n s t i t u t i o n a l l y guaranteed i s d e l i v e r e d . The study aims, then, at providing what could be looked at as a bl u e p r i n t for a c t i o n . The primary thrust i s to show how s o c i a l science studies can be used to supplement or perhaps counter l e g a l or common-sensical viewpoints when those viewpoints seem inadequate for p r o t e c t i n g the Charter r i g h t s of i n t e r e s t . The Legal Issues Of o v e r r i d i n g importance i s s. 15 of the Charter, the equality p r o v i s i o n . It states, i n subsection 1: Every i n d i v i d u a l i s equal before and under the law and has the r i g h t to the equal p r o t e c t i o n and equal benefit of the law without d i s c r i m i n a t i o n and, i n p a r t i c u l a r , without d i s c r i m i n a t i o n based on race, national o r i g i n or ethnic o r i g i n , colour, r e l i g i o n , sex, age, or mental or p h y s i c a l d i s a b i l i t y . This p r o v i s i o n took e f f e c t i n A p r i l , 1985, three years a f t e r the re s t of the c o n s t i t u t i o n , The reason for t h i s delay was to allow time for r e v i s i o n of statutes which might be i n c o n f l i c t with s. 15. Other 5 sections of the Charter, as part of the "the law", must of course conform to s. 15 and be applied i n accordance with i t . A regrettable shortcoming i n s. 15 i s that d i s c r i m i n a t i o n on the basis of language i s not s p e c i f i c a l l y forbidden. Such d i s c r i m i n a t i o n i s covered by the general provisions of s. 15, but the o v e r a l l e f f e c t i s always strengthened when the law i s more s p e c i f i c , as i n the International Covenant on C i v i l and P o l i t i c a l Rights (International Covenant) and the European Convention f o r the Protection of Human Rights and Fundamental Freedoms (European Convention). On the other hand, one advantage of s. 15 i s that i t contains i n subsection 2 a p r o v i s i o n allowing for " a f f i r m a t i v e a c t i o n " where needed: Subsection (1) does not preclude any law, program or a c t i v i t y that has as i t s object the amelioration of conditions of disadvantaged i n d i v i d u a l s or groups i n c l u d i n g those that are disadvantaged because of race, n a t i o n a l or ethnic o r i g i n , colour, r e l i g i o n , sex, age or mental or p h y s i c a l d i s a b i l i t y . This subsection i s not apparently aimed at allowing for d i f f e r e n t i a l i n t e r p r e t a t i o n or a p p l i c a t i o n of the law i n order to achieve the goals contemplated i n the statute i t s e l f , but i t would not be impossible to argue for such use i f i t could be shown that achieving the o v e r a l l goal of e q u a l i t y required i t . The c r i t i c a l point, however, i n l i n k i n g s. 15 with ESl-speakers i s that ethnic o r i g i n — i t w i l l be argued—does include language. Two other sections of the Charter pose s p e c i a l problems for ESL-speakers, and the study was designed to describe those problems so that s. 15 can be brought to bear more e f f e c t i v e l y on them. Both sections deal expressly with interpersonal l e g a l communication. The f i r s t one i s s. 10, which sets out c e r t a i n r i g h t s which a l l suspects must be given: 6 Everyone has the r i g h t on a r r e s t or detention (a) to be informed promptly of the reason therefore; (b) to r e t a i n and i n s t r u c t counsel without delay and to be informed of that r i g h t ; ... [emphasis added] It i s s. 10(b) which i s of prime importance to a l l suspects, since having a lawyer's assistance at the time of int e r r o g a t i o n i s often as important as having representation i n court. Section 11 i s al s o of i n t e r e s t because i t can be compared with the other two statutes named above. It states, i n part: Any person charged with an offence has the r i g h t (a) to be informed without unreasonable delay of the s p e c i f i c offence; ... The International Convenant has a s i m i l a r p r o v i s i o n , but addresses the language issue: In the determination of any c r i m i n a l charge against him, everyone s h a l l be e n t i t l e d to the following minimum guarantees, i n f u l l e q u a l i t y : (a) To be informed promptly and i n d e t a i l i n a language  which he understands, of the nature and cause of the charge against him; ... [Part I I I , A r t i c l e 14, section 3; emphasis added] The same phraseology i s found i n the European Convention: Everyone who i s arrested s h a l l be informed promptly, i n a language which he understands, of the reasons for his a r r e s t and of any charge against him [Section I, A r t i c l e 5, section 2; emphasis added]. In contrast to these two statutes, we may compare the older Canadian  B i l l of Rights, which r e f e r s only to "the r i g h t to be informed promptly of the reason for [one's] a r r e s t or detention", and the si x t h amendement of the American c o n s t i t u t i o n , which gives the accused the r i g h t "to be informed of the nature and cause of the accusation." It i s understandable perhaps that the older American and Canadian statutes d i d 7 not deal s p e c i f i c a l l y with the language comprehension issue, i n contrast to the European and i n t e r n a t i o n a l statutes, but the omission of the language factor i n a contemporary statute such as the C h a r t e r — i n a country which has an o f f i c i a l p o l i c y of French and English b i l i n g u a l i s m -- i s puzzling, and regrettable.. However, what Parliament has f a i l e d to provide, the courts may supply. In so doing, they w i l l have to confront t h i s f a c t u a l question i n cases that come before them: How can we know whether a p a r t i c u l a r suspect was i n f a c t "informed" of t h i s r i g h t to h i r e a lawyer? The present research project i s aimed at e l u c i d a t i n g the issues which are implied i n that question. The second of the Charter provisions which deals with communication and which must be applied i n the l i g h t of s. 15, i s s. 14: A party or witness i n any proceedings who does not understand or speak the language i n which the proceedings are conducted ... has the r i g h t to the assistance of an i n t e r p r e t e r . E s s e n t i a l l y the same r i g h t i s found i n the International Covenant and the European Convention, the d i f f e r e n c e being that those two statutes provide that the assistance s h a l l be "f r e e . " The Charter does not require that the party or witness be informed of h i s r i g h t , which could pose problems for an ESL-speaker (not to mention someone who speaks no English whatsoever, though i n that case, obviously, the Crown or the judge w i l l take steps to ensure that the i n d i v i d u a l can perform the r o l e which he i s destined to play i n the proceedings). Of equal or greater importance i s the fact that s. 14 says nothing regarding how to determine whether or not the i n d i v i d u a l does understand or speak the language of the proceedings; what "assistance" may r e f e r to; and who, i n law and i n f a c t , i s an i n t e r p r e t e r . Questions such as these must, therefore, be handled on a case-by-case basis, with the court's r u l i n g s 8 being guided by l e g a l precedent, when a v a i l a b l e ; j u d i c i a l notice, perhaps; expert opinion evidence, when tendered; and, i n the absence of any of the foregoing and p o s s i b l y a l s o i n combination there with, "common sense." A number of l e g a l questions can be i d e n t i f i e d . Does the language capacity referred to i n s. 14 have two ways of being measured ( i . e . , either through production or through comprehension); or are there a c t u a l l y two separate though r e l a t e d a b l i l i t i e s ? If i t i s the l a t t e r , then perhaps the r i g h t to the assistance of an i n t e r p r e t e r w i l l be l o s t i f i t can be shown that the person does either understand or speak the language of the proceedings. Such an i n t e r p r e t a t i o n would be d i f f i c u l t to j u s t i f y since i t would amount to reading the section as meaning "neither speaks nor understands," when i n f a c t i t r e f e r s to understanding or speaking the language. Another l e g a l question which could be r a i s e d i s whether speaking and understanding are to be assessed with reference to native-speaker standards. The judge himself, f o r example, may be s a t i s f i e d with the i n d i v i d u a l ' s a b i l i t y to function i n the courtroom—with the person's (apparent) a b i l i t y to say what he means and understand what others are saying, with the judge's own a b i l i t y to make sense of what the i n d i v i d u a l says; and the party or witness himself may be s a t i s f i e d with h i s a b i l i t y to communicate i n E n g l i s h . Is t h i s enough? Is t h i s what was intended by Parliament? Similar l e g a l questions a r i s e i n the case of s. 10(b), e.g., who determines whether the suspect has been informed of his r i g h t to counsel, and how? Here too the Charter contains no guidelines at a l l . Is the i n v e s t i g a t i n g o f f i c e r responsible for ascertaining that the suspect understood what he was just told? If so, 9 how i s t h i s to be done? Is i t enough that the suspect s a y s — i n E n g l i s h --that he understands? How i s h i s understanding l a t e r to be proved i n court? Design of the Study The purpose of the study was to compare three approaches to the ESL and i n t e r c u l t u r a l communication factors which are involved i n framing the issues which a r i s e when we ask how equality i s to be achieved i n (a) informing suspects of t h e i r r i g h t to h i r e a lawyer immediately, and (b) providing "the assistance of an i n t e r p r e t e r . " Below, the method through which each of the perspectives was developed i n the study i s o u t l i n e d . To e s t a b l i s h a point of view which could f a i r l y be said to be i l l u s t r a t i v e of s o c i a l s c i e n t i f i c thinking, a focused review of the l i t e r a t u r e was conducted. Sought were t h e o r e t i c a l and empirical studies which treated topics such as the nature of problems i n l e g a l and other t r a n s l a t i o n and i n t e r p r e t a t i o n , suspects' comprehension of t h e i r Miranda ri g h t s i n the United States, basic p r i n c i p l e s of i n t e r c u l t u r a l communication, s p e c i a l problems inv o l v i n g the language of the law, and l i n g u i s t i c and c u l t u r a l f a c t o r s i n courtroom i n t e r a c t i o n . The r e s u l t i n g composite viewpoint cut across a number of d i s c i p l i n e s , v i z . , l i n g u i s t i c s , anthropology, sociology, psychology, law, and communication. This was not the customary approach to a survey to the l i t e r a t u r e since the research project i t s e l f would not seek to delve further i n t o empirical questions r a i s e d i n the l i t e r a t u r e . In addition, the l i t e r a t u r e survey would be used i n a somewhat general fashion. There 10 was not attempt to consruct a s t a t i s t i c a l l y representative survey of s o c i a l science thing, e i t h e r . Instead, the researcher selected studies whose f o c i came c l o s e s t to the s p e c i f i c phenomena of i n t e r e s t i n the present study. The sources themselves were not evaluated and no attempt was made to r e c o n c i l e d i f f e r e n c e s among them. Indeed, the studies' usefulness i n the preesent research project l i e s i n another d i r e c t i o n : a l e r t i n g us to the widest p o s s i b l e range of problems which should be considered i n asking how eq u a l i t y for ESL-speakers can be achieved i n implementing the two communication-oriented Charter r i g h t s (ss. 10(b) and 14). This r e l a t e d to the study's goal i n t h i s way: Courts must make findings of f a c t i n every case to be decided; but how do the courts knwo which f a c t u a l questions to ask i n the f i r s t place? Legal questions can emerge from the same way of looking at the r i g h t s . E s t a b l i s h i n g a representative l e g a l viewpoint—another of the three viewpoints compared i n the study—was straightorward, i n that a d i s c r e t e body of a v a i l a b l e data existed and could be i d e n t i f i e d . In th i s case, there was no sampling at a l l . Instead an attempt was made to include the e n t i r e population, which i n t h i s instance i s a l l reported Canadian cases i n which ESL or i n t e r c u l t u r a l communication i s s u e s — inc l u d i n g court i n t e r p r e t a t i o n — w e r e mentioned. The technique f o r i d e n t i f i y i n g the population of cases was to begin with a computer-generated l i s t of reported cases obtained from several databases made up of cases reported i n the numerous reporting services. I n i t i a l l y , several hundred seemed to come up, but many were rejected l a t e r since they d i d not a c t u a l l y include any discussion of the relevant issues. The f i n a l l i s t of cases was made up of recent decisions, p r i m a r i l y , and included a handful from other Commonwealth j u r i s d i c t i o n s which had been 11 c i t e d i n the Canadian d e c i s i o n s . There were very few older cases c i t e d i n the recent d e c i s i o n s , probably because communication issues received les s a t t e n t i o n i n the past, and perhaps because the pattern of immigration has changed i n recent years. Of course, i n the case of s. 10(b) and the issues involved therein, i t i s only with the proclamation of the Charter that informing suspects of the r i g h t to counsel became c r i t i c a l . Here, too, the goal of t h i s p r t of the research was to asc e r t a i n the type of viewpoint which i s t y p i c a l of t h i s d i s c i p l i n e or enterprise. Once more, the d i f f e r e n c e between the approach taken i n t h i s study and that which i s more commonly taken needs to be mentioned. In l e g a l a n a l y s i s , such as the "case comment," the state of the law i s looked at and then evaluated, i l e . , the l e g a l questions are answered on the basis of case-law precedent. In contrast, i n the present study, the survey of decided cases was indented to reveal the range of issues which the court recognizes, and the court's t y p i c a l approach to them. The t h i r d source of data used i n the study c o n s i s t s of the practical', r e s u l t s - o r i e n t e d "working knowledge" of p r a c t i t i o n e r s working within the l e g a l system broadly defined. The interviewees and t h e i r occupations were selected on the basis of the a c c e s s i b i l i t y of the researcher (who was himself trained i n law and had worked b r i e f l y i n a l e g a l capacity i n the c i t y i n which the research was conducted, Vancouver, Canada). The occupations represented are: s o c i a l service or immigrant services worker (10 respondents); court i n t e r p r e t e r (4); lawyer (3); i n t e r c u l t u r a l communication t r a i n e r s (2); judges (2); probation o f f i c e r s (2); courtworker program administrator (1); case presenting o f f i c e r (immigration) (1); and adjudicator (immigration) (1). 1 2 A sizeable proportion of the interviewees were themselves b i l i n g u a l and b i c u l t u r a l , i n c l u d i n g two of the three lawyers and nearly a l l of the s o c i a l s e rvice and immigrant services workers (some of whom also act as i n t e r p r e t e r s i n various s e t t i n g s ) . In the interviews, respondents were asked to consider the two types of communication events implied i n the Charter r i g h t s , i . e . , being questioned by the p o l i c e and informed of the r i g h t to counsel, and using i n t e r p r e t e r s i n court; and then to comment on what the major problems faced by ESL-speakers might be, i n t h e i r experience. This general approach was modified somewhat according to the interviewee's p a r t i c u l a r job, of course. No attempt was made to ensure that a l l interviewees were asked the same exact questions. Instead, often the researcher asked for examples of communication problems which had come to the interviewees's a t t e n t i o n , a f t e r which the factors involved were discussed at some length. It d i d not take long for the interviewees to appreciated what i t was the the researcher was i n t e r e s t e d i n , and generally researcher and interviewee more or less worked together i n exploring the interviewee's p a r t i c u l a r knowledge i n these areas. After a period of time ranging between t h i r t y minutes and about an hour and a h a l f , i t had become cl e a r that no more issues or problems were l e f t undiscussed, at which point the interview was terminated by the researcher. Generally speaking, the interviewees d i d not f i n d the research topic e i t h e r unusual or unimportant. Many commented that they had been concerned about some of the issues, and more than once an interviewee stated that the d i s c u s s i o n was enlightening. The two b i l i n g u a l lawyers took an e s p e c i a l l y keen i n t e r e s t i n the interview, as d i d others from 13 non-Western backgrounds. It was the researcher's impression that, as a whole, a body of practical knowledge had indeed been tapped in the interviews. This conglomerate of knowledge would play the part in the study of providing a third viewpoint with which the social science and legal viewpoints could be compared. As w i l l be seen later, this goal seems to have been achieved. 14 CHAPTER TWO THE SOCIAL ROLE OF THE INTERPRETER 15 The phenomenon of i n t e r p r e t a t i o n i t s e l f , as a t o p i c separate from what the court i n t e r p r e t e r does, and how, w i l l be discussed f i r s t . This r e l a t e s s p e c i f i c a l l y to the wording of s. 14: What i s an i n t e r p r e t e r ? While i t i s customary i n the law to view i n t e r p r e t a t i o n from a s t r i c t l y l i n g u i s t i c and non-interactional point of view, the review of the s o c i a l science l i t e r a t u r e produced a number of observations which bear d i r e c t l y on i n t e r p r e t a t i o n as a s o c i a l phenomenon. To counter the common l i n g u i s t i c emphasis i n conceptualizing i n t e r p r e t a t i o n , i n t h i s report the s o c i a l r o l e of the i n t e r p r e t e r w i l l be discussed f i r s t . The short-range goal here, as i n the following chapters, i s to i d e n t i f y areas where (a) d i f f e r e n t answers are given to the questions implied; and/or (b) the same questions are not acknowledged within the three perspectives to be compared ( s o c i a l s c i e n t i f i c , p r a c t i c a l , and l e g a l ) . In t h i s report, within each area, the s o c i a l s c i e n t i f i c point of view i s presented f i r s t , then the p r a c t i c a l , and f i n a l l y the l e g a l . The S o c i a l Science Perspective To c l a r i f y some basic terms at the outset, the person who t r a n s f e r s meaning from one language to another i n face-to-face i n t e r a c t i o n i s c a l l e d an i n t e r p r e t e r . In the courtroom setting, and elsewhere, the performance of the act i s often c a l l e d t r a n s l a t i n g ; however, i n the case of conference i n t e r p r e t e r s , i t may be c a l l e d i n t e r p r e t i n g . "Oral t r a n s l a t i o n " i s a synonym for i n t e r p r e t i n g according to Harris (1978), though Gold (1984) f e e l s that "simultaneous t r a n s l a t i o n " and "instantaneous t r a n s l a t i o n " are misnomers and should not be used. The actual d i f f e r e n c e s betweeen the s k i l l s used i n i n t e r p r e t i n g and t r a n s l a t i n g (written texts) are not c l e a r , what the 16 conference i n t e r p r e t e r provides i s customarily c a l l e d "simultaneous i n t e r p r e t a t i o n , " i . e . , a "voice-over" t r a n s l a t i o n transmitted through headphones. In l e g a l proceedings such as cri m i n a l t r i a l s , t h i s i s done fo r the accused by an in t e r p r e t e r s i t t i n g nearby, who whispers to the accused. It i s usual to r e f e r to t h i s i n t e r p r e t e r as the party i n t e r p r e t e r . Better known perhaps i s the in t e r p r e t e r who translates what the witness says a f t e r he has said i t (the witness i n t e r p r e t e r ) , and t r a n s l a t e s questions posed by the lawyers or the judge f o r the witness. This i s re f e r r e d to as consecutive i n t e r p r e t a t i o n or consecutive t r a n s l a t i o n . An ESL-speaker who i s an accused needs a party i n t e r p r e t e r throughout. (In t h i s report, i f no d i s t i n c t i o n i s made i n the text, the term ESL-speaker r e f e r s to both those who speak English as a second language as well as those who, for l e g a l purposes, do not speak i t at a l l . ) The main systematic treatment of the s o c i a l r o l e of the i n t e r p r e t e r has been offe r e d by Anderson (1976), who emphasizes the i n t e r p r e t e r ' s r o l e as a "go-between" who i s e a s i l y able to a f f e c t i n t e r a c t i o n a l outcomes by v i r t u e of h i s key p o s i t i o n . He notes that u s u a l l y the in t e r p r e t e r i s a native speaker of one of the communicators' languages but not of the other's, which may a f f e c t the communication. He may, for instance, " i d e n t i f y " with the one who speaks h i s own mother tongue (p. 212). In Anderson's view, the i n t e r p r e t e r i s an i n d i v i d u a l with dual l o y a l i t i e s . "he i s the 'man i n the middle 1 with some ob l i g a t i o n s to both c l i e n t s — a n d these o b l i g a t i o n s may not be e n t i r e l y compatible" (p. 216). Along with t h i s p o t e n t i a l r o l e c o n f l i c t i s what Anderson c a l l s r o l e ambiguity, i n that "the in t e r p r e t e r ' s r o l e i s always p a r t i a l l y u n defined— that i s , the r o l e p r e s c r i p t i o n s are o b j e c t i v e l y 17 inadequate" (p. 216). Together, the dual ob l i g a t i o n s and r o l e ambiguity place the inter p r e t e r i n a r e l a t i v e l y powerful p o s i t i o n , e s p e c i a l l y since neither communicator i s l i k e l y to know how the int e r p r e t e r i s "managing" the i n t e r a c t i o n . To a s o c i o l o g i s t , then, the in t e r p r e t e r i s l i k e l y to be anything but a " f a i t h f u l echo." Others have a l s o commented on the i n t e r p r e t e r ' s s o c i a l r o l e i n one context or another. Cannon (1983) discusses the int e r p r e t e r ' s r o l e i n i n t e r c u l t u r a l counselling. In general, she f e e l s that the i n t e r p r e t e r should not take an a c t i v e r o l e i n s t r u c t u r i n g the communication (p. 12), yet she acknowledges that on occasion ...the i n t e r p r e t e r may be looked on by the c l i e n t as somewhat of an authority, and the counselor may be expected to speak p r i m a r i l y to the i n t e r p r e t e r rather than to the c l i e n t (p.12). The i n t e r p r e t e r ' s r o l e may al s o include a s s i s t i n g the c l i e n t to behave p o l i t e l y , e.g., "by providing cues to the c l i e n t as to when to stand, s i t , smile, and so on" (p.12). Other divergences from the "t r a n s l a t o r only" r o l e - s e t are found when the c l i e n t needs an interpeter who i s al s o an agent, someone who i s held i n high esteem by the c l i e n t and i s expected to speak d i r e c t l y to the counselor due to age- or gender-r e l a t e d norms i n the c l i e n t ' s c u l t u r e . Baker (1981), commenting on the use of int e r p r e t e r s i n s o c i a l work, notes that r e s t r i c t i n g the i n t e r p r e t e r ' s r o l e to t r a n s l a t i o n may cause harm. One example c i t e d i s that of an in t e r p r e t e r who d u t i f u l l y t r a n s l a t e d the s o c i a l worker's many questions about a refugee's family's f i n a n c i a l status, influence i n the community, and so on, without informing the worker that such a l i n e of questioning was offens i v e to the c l i e n t . In another case, the i n t e r p r e t e r was aware that a refugee had agreed to enter high school only to please the s o c i a l worker, but 18 neglected to inform the worker of t h i s . Baker also notes the opposite approach to the i n t e r p r e t e r r o l e . In one instance, a young refugee was to be placed either i n a fos t e r home or with h i s uncle. When asked, he said he wanted to l i v e with h i s uncle, but the inter p r e t e r "convinced" the c l i e n t to choose the fos t e r home (p.393). In another case, an in t e r p r e t e r advised a c l i e n t not to t e l l the s o c i a l worker about her problems because "the s o c i a l worker 'has had a hard week and does not need any more problems to worry about'" (p.393). The i d e a l i n t e r p r e t e r , f o r Baker, f a l l s i n between these two extremes. We may look also to others, such as s o c i a l workers, who occupy r o l e s as mediators and who may on occasion act as int e r p r e t e r s as well (see below). Green (1982) o f f e r s a four-part typology of s o c i a l worker or i e n t a t i o n s which may be relevant. One approach i s advocacy, where the worker represents the i n t e r e s t s of the c l i e n t community. In the second type, the counseling approach, the worker would take a neutral, c l i e n t -centered view. "Regulation" i s a t h i r d approach; there, the worker acts as an agent of s o c i a l c o n t r o l on behalf of the larger society. Interpreters employed by government agencies may well f i n d themselves i n t h i s p o s i t i o n . L a s t l y , Green, too, notes the r o l e of "intermediary or broker between the i n d i v i d u a l and society" (p. 19). E s p e c i a l l y when the worker i s a member of a minority group which i s represented i n the community, he may experience c o n f l i c t s of i n t e r e s t . A f i n a l example of somewhat s i m i l a r r o l e i s that of the fore i g n student adviser (FSA) working at the u n i v e r s i t y . Athen (1984) notes that the FSA may be "responsible" to nearly a dozen d i s t i n c t groups,, even though t h i s salary i s paid only by the school (p. 8). Though i t i s not a part of the formal FSA r o l e d e s c r i p t i o n , FSA's are considered 19 accountable to the students, t h e i r own supervisors, t h e i r consciences, the executive o f f i c e r s of the schools, colleagues both within the i n s t i t u t i o n and elsewhere, and perhaps the government of the nation i n which they work. Like the i n t e r p r e t e r , the FSA must contend with ambiguous duties and numerous r e s p o n s i b i l i t i e s , and there i s considerable v a r i a t i o n i n r o l e enactment. Here, too, the p r o f e s s i o n a l may be held responsible for helping the c l i e n t behave "decorously," and may be considered "an intermediary or ' c u l t u r a l i n t e r p r e t e r ' " (p.62), thus playing an a c t i v e r o l e i n communication. Like the s o c i a l worker, the FSA can choose between r o l e i n t e r p r e t a t i o n s which emphasize counseling, protecting society's i n t e r e s t s (against the c l i e n t ) , or advocacy of the c l i e n t ' s i n t e r e s t s . We should a l s o note the observation of the well-known i n t e r c u l t u r a l communication expert Edward C. Stewart regarding the r o l e of c u l t u r a l (ethnic) d i f f e r e n c e s i n conceptions of the i n t e r p r e t e r ' s r o l e : The American sees the i n t e r p r e t e r as a window pane that transmits the message from one language to the other; but i n cultures where a third-person r o l e i n confrontation i s customary, the i n t e r p r e t e r s r o l e may become a much more a c t i v e one, to the consternation of the American[,] who i s l i k e l y to i n t e r p r e t i t as i n e f f i c i e n c y or perhaps d i s l o y a l t y (Stewart 1972, p.53). P r a c t i t i o n e r s ' Views A number of comments were made by practioners r e l a t i n g to the s o c i a l r o l e of the i n t e r p r e t e r . The mixture of t r a n s l a t i o n and advocacy engaged i n by i n t e r p r e t e r s working through one immigrant services society was described by i t s d i r e c t o r , who also works as a counselor, as 20 do the other worker/interpreters. C l i e n t s need the assistance of an int e r p r e t e r i n interviews for Unemployment Insurance Commission a p p l i c a t i o n s , Workman's Compensation Board appeals, complaints to the Labor Standards Branch, and so on. Sometimes the i n t e r p r e t e r provide " s t r a i g h t i n t e r p r e t a t i o n , " she said, but on other occasions they "advocate on behalf of the c l i e n t , so that they do receive t h e i r entitlement." This may take the form of " c u l t u r a l i n t e r p r e t a t i o n , " as when i t i s necessary to explain to the c l i e n t what welfare of unemployment insurance i s or to deal with the c l i e n t ' s suspicion of government agencies i n general. She d i d not know whether these duties might a f f e c t an in t e r p r e t e r when acting as a court i n t e r p r e t e r , as many of them do from time to time. Individuals' p r i o r experience with d i f f e r e n t kinds of l e g a l systems a l s o creates problems which i n t e r p r e t e r s may attempt to deal with. C l i e n t s may not understand the presumption of innocence, f o r example. A b i l i n g u a l lawyer explained that, to deal with such problems, ...the i n t e r p r e t e r would r e a l l y have to stop and give a l e c t u r e to the person to explain what's going on and doesn't have the opportunity because a l l they're r e a l l y supposed to be doing i s just exactly t r a n s l a t i n g the questions i n English ... [yet sometimes] ... the i n t e r p r e t e r just s l i p s one i n . Unfortunately, he added, sometimes the information provided i s wrong. A court i n t e r p r e t e r who has been involved i n t r a i n i n g other court i n t e r p r e t e r s observed that sometimes the c l i e n t requests advice from the inte r p r e t e r because he may be the only person i n the courtroom who speaks the c l i e n t ' s language and to whom the c l i e n t can r e l a t e . Sometimes "there i s a bond" between the two, and the i n t e r p r e t e r i s someone the accused " w i l l grab for security." He, too, remarked that sometimes the advice given i s i l l - f o u n d e d . The c l i e n t at other times 21 may tend to confuse the i n t e r p r e t e r ' s r o l e i n the courtroom: He may speak d i r e c t l y to the i n t e r p r e t e r . The court i n t e r p r e t e r t r a i n e r explained: Because the question's come through the i n t e r p r e t e r , there i s a mistaken i d e n t i t y and you w i l l i d e n t i t y with the i n t e r p r e t e r as someone who a c t u a l l y asks the questions. This could be d i s t u r b i n g . Sometimes, the c r e d i b i l i t y of the witness i s challenged; he may even be c a l l e d a l i a r . If the witness perceives the i n t e r p r e t e r as the one asking the questions, the r e l a t i o n s h i p between them can become problematic. We might see the witness "getting worked up, the counsel di s p l a y i n g anger, and now the i n t e r p r e t e r may be involved and caught i n t h i s , " he continued, e s p e c i a l l y i f the i n t e r p r e t e r i s not an experienced i n t e r p r e t e r . On the other had, the sometimes intense r e l a t i o n s h i p between c l i e n t and i n t e r p r e t e r may lead the c l i e n t to go as far as asking the i n t e r p r e t e r to a c t u a l l y take over the advocacy r o l e . In one instance where the t r a i n e r himself had been i n t e r p r e t i n g , ...the accused ... was charged with a very serious offense, t r a f f i c k i n g i n heroin. He was asked very u n s e t t l i n g questions, and he was pleading with me, as i f he could win anything by convincing me of h i s innocence, simply because I was the i n t e r p r e t e r i n the middle of i t . So then you t r y to stay out ot the s i t u a t i o n as much as p o s s i b l e , but you may s t i l l not change the basic f a c t that the acccused w i l l tend to speak to you instead to the counsel who i s asking the questions or to the judge. Respondents' observations concerning i n t e r p r e t e r coaching i n non-courtroom s i t u a t i o n s p a r a l l e l e d the discussions of the i n t e r p r e t e r ' s r o l e found i n the s o c i a l science l i t e r a t u r e . For example, an i n t e r p r e t e r - t r a n s l a t o r who works for an immigrant services agency reported that sometimes s o c i a l workers ask him during an interview for which he i s i n t e r p r e t i n g , "Is i t normal among Japanese to think t h i s 22 way?", or, "This arrangement would be acceptable for a Japanese?" A probation o f f i c e r was appreciative of the i n t e r p r e t e r ' s volunteering to provide c u l t u r a l i n t e r p r e t a t i o n , and considered i t part of the i n t e r p e t e r ' s being good at doing his job: I've come across t r a n s l a t o r s and i n t e r p r e t e r s who are i n f a c t r e a l l y good at doing t h e i r job. They t r a n s l a t e exactly what you say and they t r a n s l a t e back from the c l i e n t to you. A number of them w i l l take the i n i t i a t i v e i n terms of saying, "Okay, i n our c u l t u r e , that doesn't f i t ; l i k e , what you've asked just doesn't f i t i n . Is i t a l r i g h t i f I change something?" And t h e y ' l l t e l l you what they're going to change i t to and present i t to the c l i e n t so that you understand ahead of time what's going on. She also l i k e d the f a c t that i n t e r p r e t e r s might o f f e r opinions about the c l i e n t ' s v e r a c i t y , making observations such as: "Well, you know, with our culture, t h i s person i s n ' t ... i t i s n ' t quite r i g h t , the way he's saying these things, so i t could be that ... he's not t e l l i n g the t r u t h or he f e e l s something else about t h i s s i t u a t i o n . Maybe you should t r y looking i n t o that area and questioning him about t h i s . " This respondent would make ac t i v e use of i n t e r p r e t e r s i n t h i s way, sometimes asking, "Are you p i c k i n g up anything from the c l i e n t ? " If the i n t e r p r e t e r seemed good at doing t h i s , she would then place more f a i t h i n the i n t e r p e t e r ' s opinion i n making her assessment of the c l i e n t s ' s character, which plays a part i n the probation o f f i c e r ' s work (of course, such "information" could not be used as s u c h — i t would have to be corroborated). The d i f f i c u l t y i n l a t e r i d e n t i f y i n g i n t e r p r e t e r counseling which occurred i n the courtroom i s due to the f a c t that only English-language record i s a v a i l a b l e on appeal; t r a n l a t i o n s made to and from the c l i e n t i n the f o r e i g n language are not recorded. Said a b i l i n g u a l lawyer, the assumption i s that the English words are 23 ... absolutely, p e r f e c t l y correct as to nuance, just as i f the person were a proper English-speaking person. So the f a c t that the i n t e r p r e t e r puts words i n t o the witness's mouth or does some coaching or [asks] leading questions or paraphrases a question that's asked by the judge or uses weighted words i s just not availabe to the courts because the assumption i s that the i n t e r p r e t e r i s the voice of the witness, and they are not funneling i t i n any way. On occasion, the in t e r p r e t e r may go f a r beyond what most would consider the bounds of h i s r o l e . One court reporter who happens to be o f f i c i a l l y q u a l i f i e d to i n t e r p r e t i n numerous languages i s thus able to observe the behavior of many d i f f e r e n t i n t e r p r e t e r s r e c a l l e d a case where he had been present i n the courtroom as an observer. An untrained i n t e r p r e t e r t o l d the accused, i n the for e i g n language, "'Well, look, I have to get out of here, ' you know, 'for my dental appointment, so just plead g u i l t y and get i t over with.'" The interviewee observed that, i n such case, often ... [t]he person doesn't r e a l i z e that, of course, he's pleading g u i l t y . He may not a c t u a l l y f e e l that he's g u i l t y , but f o r expediency, just to get out of there, sometimes people w i l l plead g u i l t y . While i d e a l l y i t does not occur i n court i n t e r p r e t i n g , the pr a c t i c e of a c t u a l l y answering f o r the c l i e n t was a l s o noted by some respondents. Several immigration services workers explained that when a c l i e n t ' s r e l a t i v e acts as the in t e r p r e t e r , e.g., i n a p p l i c a t i o n s f o r government b e n e f i t s , the r e l a t i v e may answer on behalf of the c l i e n t , g i v i ng the response which he thinks the o f f i c i a l may want to hear, but which may i n f a c t be detrimental to the c l i e n t s ' s case. This i s a p r a c t i c e which i s r e l a t e d to cu l t u r e : [0]ur people define help i n a very d i f f e r e n t way. When you go to seek help from someone, you .. are puttin g them on that kind of pedestal, that you w i l l t e l l them what to do and then afterwards take the r e s p o n s i b i l i t y . In the same manner, ... a person who 24 goes with them to i n t e r p r e t , he knows what p o s i t i o n he has got, and that he can speak on [t h e i r ] behalf, and he very comfortably ... goes on speaking on [ t h e i r ] behalf, sometimes without checking with the c l i e n t . P a r t i c u l a r y when a Punjabi woman i s being interviewed, the husband or a son or daughter would automatically assume the r e s p o n s i b i l i t y for gi v i n g answers. Great confusion can occur when the i n t e r p r e t e r oversteps h i s bounds, as i s i l l u s t r a t e d by a case where a husband accused of acts of violence against h i s wife and c h i l d had had a r e s t r a i n i n g order placed on him. The i n t e r p r e t e r , described as an older, t r a d i t i o n a l gentleman who d i d not approve of a wife taking her husband to court, even for s e l f - p r o t e c t i o n , t o l d the c l i e n t , "Think, as f a r as you're concerned, your family i s dead f o r you. They don't need you, they don't want you." This type of problem can occur even when the i n t e r p r e t e r i s supposedly d i s i n t e r e s t e d . A probation o f f i c e r described a case which involved an i n t e r p r e t e r who had "taken a few courses i n counseling" and worked for an immigrant services agency as both an i n t e r p r e t e r and counselor. In the interview, the int e r p r e t e r ... jumped i n and b a s i c a l l y took over the whole conversation .... She f e l t that because she knew the cul t u r e and because she knew the language, she could help the people and take over the counseling r o l e . In another case reported by the probation o f f i c e r , the in t e r p r e t e r "got int o a f i g h t " with the c l i e n t , and " [ i ] t ended up that they both started screaming at each other." The probation o f f i c e r never learned exactly what had trans p i r e d since f i r s t one l e f t and then the other, but i t seeemed that the interpeter had taken the side of the c l i e n t ' s wife, against him, i n the interview. 25 The Legal Perspective In comparision to the s o c i a l s c i e n t i s t s and p r a c t i t i o n e r s , judges do not show much awareness of the r e a l i t y of the s o c i a l r o l e of the i n t e r p r e t e r . Only a small number of cases decided or r e l i e d on i n Canada t r e a t t h i s aspect of i n t e r p r e t a t i o n at a l l . Some factors given consideration do, however, o f f e r an i n t e r e s t i n g complement to the other two perspectives. In Unterreiner v. The Queen (1980) [ c i t a t i o n s f or cases provided at the end of t h i s r e p o r t ] , an Ontario County Court d e c i s i o n , a firearms o f f i c e r had refused to issue a firearms a c q u i s i t i o n c e r t i f i c a t e to the applicant on the grounds that he had "a h i s t o r y of violence and/or threatened violence, against other persons" ( i n the language of the r e g u l a t i o n s ) . In challenging t h i s d e n i a l i n P r o v i n c i a l Court, the appellant faced h i s own father as a Crown witness against him. The father, a n a t i v e speaker of German, "had d i f f i c u l t y " with English, but i t was not discovered u n t i l the hearing that an i n t e r p r e t e r would be needed. The father suggested that a f r i e n d of h i s present i n the courtroom be used as an i n t e r p r e t e r . This i n d i v i d u a l was sworn i n as the i n t e r p r e t e r without any i n q u i r y i n t o h i s competence as an i n t e r p r e t e r having been made, and without allowing the appellant the chance to make submissions on t h i s point. The appellate court agreed that there had been a de n i a l of natural j u s t i c e with respect both to the f a i l u r e to t e s t the i n t e r p r e t e r ' s competence and the f a i l u r e to inquire i n t o h i s i m p a r t i a l i t y . Somewhat to the contrary i s the case of R. v. Johny and B i l l y (1981), where secret tape recordings made of jailhouse conversations between two defendants had been t r a n s l a t e d by a p o l i c e 26 o f f i c e r . The report makes no mention of the o f f i c e r ' s i m p a r t i a l i t y being an issue. The s o c i a l r o l e of the i n t e r p r e t e r a r i s e s i n an oblique fashion with respect to the hearsay issue: When an i n v e s t i g a t i o n o f f i c e r t e s t i f i e s i n court as to what the suspect said on the basis of a t r a n s l a t i o n made during the in t e r r o g a t i o n , i s that hearsay? That i s , i n law, are the int e r p r e t e r ' s words those of the suspect? If they are not, then the o f f i c e r ' s testimony i s h e a r s a y — i t i s only what someone t o l d him that someone else said, and unacceptable concerning i t s t r u t h . The in t e r p r e t e r could of course t e s t i f y as to what the suspect said, but often no notes were taken and/or he i s not c a l l e d as a witness. A very o l d Supreme Court of Canada case, Shajoo Ram v. The King (1915) shows how f a r back the view of in t e r p r e t e r s as mere t r a n s l a t i n g machines can be traced. In that case, the accused appealed h i s c o n v i c t i o n for perjury on the ground that he had not been l e g a l l y sworn i n as a witness i n the f i r s t place because the oath had been administered to him by the in t e r p r e t e r rather than by the magistrate. The court was unanimous i n holding that t h i s made no d i f f e r e n c e : "The i n t e r p r e t e r was merely the mouth piece of the j u d i c i a l o f f i c e r " (p. 397). The imp l i c a t i o n seems to be that the in t e r p r e t e r has no s o c i a l or l e g a l i d e n t i t y or substance of his own (the court took a dim view of such a te c h n i c a l argument i n any case). For an opposing view, there i s the Quebec case of R. v. Hatzopolous (1980), where a German-speaking suspect had been questioned by a francophone detective, with the suspect's lawyer ac t i n g as an in t e r p r e t e r (German to English, which the de t e c t i v e spoke as a second language). On the v o i r d i r e — a separate hearing during the t r i a l i n 27 which the a d m i s s i b i l i t y of inculpatory statements i s d e c i d e d — i t was held that t h i s was not a case where the statement could be a t t r i b u t e d to the accused. These were "not the accused's words which were taken down but the t r a n s l a t i o n s made by his s o l i c i t o r [lawyer]" (p. 58). Neither Unterreiner nor Hatzopolous o f f e r s anything l i k e a s a t i s f y i n g d i s c u s s i o n of t h i s issue, however; we must turn to R. v. Kores (1970) for a more involved a n a l y s i s . The Kores case was t r i e d f i r s t i n B r i t i s h Columbia County Court, and then appealed i n the Court of Appeal of B r i t i s h Columbia. The accused, a Greek national, had been apprehended by immigration a u t h o r i t i e s . He was interrogated without the benefit of counsel, and the i n t e r p r e t e r made no notes. At t r i a l , he was acquitted due to the i n v e s t i g a t i n g o f f i c e r ' s testimony having been ruled to be hearsay. His lawyer c i t e d the sim i l a r B r i t i s h case of R. v. Attard (1958), and the County Court judge decided to follow that case. In so doing, the court d e a l t with the leading case on point, Gaio v. Reg. (1960-61), a de c i s i o n of the High Court of A u s t r a l i a , where the r o l e of the interpreter played an important part i n the decsion. In Gaio, which arose i n New Guinea, the int e r p r e t e r had been i l l i t e r a t e (while i n Kores, the judge found otherwise, which was why Attard could be followed). Fullagar, J . rejected the hearsay view, as di d h i s brethren, holding that, i n law, only a single conversation takes place, even though an in t e r p r e t e r i s necessary. The int e r p r e t e r functions as does a machine: [S]ome means i s necessary by which what A says may be made i n t e l l i g i b l e to B and what B says may be made i n t e l l i g i b l e to A. C supplies that means. C i s not  i n any r e a l sense a party to the conversation. He  contributes nothing of h i s own that i s material. He 28 i s merely the mouthpiece a l t e r n a t i v e l y of A and of B (p.430; emphasis added). This i s the c l e a r e s t statement of the non-hearsay p o s i t i o n found i n the cases, although the d i f f e r n t analogy o f f e r e d by one of the other judges, K i t t o , J . , comes close. He said the i n t e r p r e t e r had ... acted not as a narrator but s t r i c t l y as a t r a n s l a t o r , making the appellant's words i n t e l l i g i b l e to Smith as they were uttered. This means that the r o l e played by Arthur [the i n t e r p r e t e r ] between the two persons, the want of a common language preventing them from being understsood by one another except through a b i l i n g u a l transmitter, was not d i f f e r e n t i n  p r i n c i p l e from that which i n another case an  e l e c t r i c a l instrument f u l f i l l i n overcoming the  b a r r i e r of distance (p. 430; emphasis added). Menzies, J . , too, f e l t that the i n t e r p r e t e r was " l i k e a machine, ... merely a t r a n s l a t o r " (p.433), and that the hearsay r u l e would be offended only i f the i n t e r p r e t e r were "recounting something that had happened" (p. 432). As stated, at t r i a l i n Kores, At t a r d was followed on the ground that the i n t e r p r e t e r there had been "far more than a mere mechanical device at the interview" (p. 101). However, the B r i t i s h Columbia Court of Appeal overturned that r u l i n g by Darling, Co.Ct.J. The court was unanimous i n holding the the Gaio case applied to the f a c t s i n Kores. Davey, C.J.B.C. explained that, even i f the i n t e r p r e t e r had not acted merely as a machine, but used h i s own judgment and s k i l l , that would not a f f e c t the a d m i s s i b i l i t y of the evidence: "That only goes to the weight and a r i s e s only when the accuracy of the t r a n s l a t i o n made by the i n t e r p r e t e r comes i n question" (p. 94). In other words, how the interpeter performs h i s r o l e can be relevant when the t r i e r of f a c t decides whether to accept the t r a n s l a t i o n as accurate or r e l i a b l e , but i t does not render the t r a n s l a t i o n hearsay. How far t h i s l i n e of 29 reasoning could be taken i s an implied question. The most recent case reported where the issue arose was R. v. Kam Wah Kwok et a l . (1984), an Ontario case. There, the P r o v i n c i a l Court judge d i d apply the hearsay r u l e , noting that the i n t e r p r e t e r was not an agent of the accused. Comment What seems more than c l e a r from the preceding i s that the court i s not aware of many issues where the s o c i a l or i n t e r a c t i o n a l r o l e of the i n t e r p r e t e r i s concerned. Of course, i n general the court i s loath to see p o t e n t i a l evidence excluded from consideration, without the t r i e r of f a c t being given a change to "weigh" i t . But there i s s t i l l a great d i f f e r e n c e i n the range of phenomena taken i n t o consideration. The courts can be said to focus on the end-points i n the communication processs, e.g., what the accused said rather than the circumstances which gave r i s e t o the statement. There i s a "bottom l i n e " mentality which, despite i t s usefulness to the court i n reducing the issues to be decided to a manageable few, leads to an a r t i f i c i a l d i s t i n c t i o n between actions and contexts. The meaning of events i s sought c l o s e s t to the end of the action chain, as opposed to the s o c i a l s c i e n t i f i c view, which analyzes meaning within the larger framework of actors, r o l e s , and i n t e n t i o n s . P r a c t i t i o n e r s , too were aware of the human element i n i n t e r p r e t a t i o n . It appears that the hearsay issue i s where the divergence i s c l e a r e s t . The l e g a l perpsective approximates that which Stewart (1972) a t t r i b u t e d to the Western mind (see above). 30 CHAPTER THREE LINGUISTIC ASPECTS OF INTERPRETATION 31 In t h i s report, the s o c i a l r o l e of the i n t e r p r e t e r i s treated p r i o r to l i n g u i s t i c aspects of i n t e r p r e t a t i o n since any i n t e r r e l a t i o n s h i p between the two i s f a r more l i k e l y to consist of the former i n f l u e n c i n g the l a t t e r rather than vice-versa. In most people's minds, i t i s the l i n g u i s t i c aspects of i n t e r p r e t a t i o n which are uppermost. Here, as i n other areas treated i n the study, s o c i a l s c i e n t i s t s and p r a c t i t i o n e r s have had more to say about the problems and the v a r i a t i o n s i n the phenomena which make every i n d i v i d u a l instance unique. Courts take the opposite tack, seeking to f i n d commonalities among instances so that new cases can be c l a s s i f i e d with reference to t h e i r s i m i l a r i t i e s to previously decided cases or, at l e a s t , to the statutes or accepted l e g a l p r i n c i p l e s . The S o c i a l Science Perspective Perhaps the most fundamental of issues recognized i n s o c i a l science i s that of accuracy or l i n g u i s t i c - e q u i v a l e n c e . Rokkan (1980) argues that a t r u l y correct t r a n s l a t i o n i s impossible because l i n g u i s t i c equivalence depends on c u l t u r a l f a c t o r s , which can never be considered equivalent. On the other had, van Eyken (1981), while acknowledging the i m p o s s i b i l i t y of completely accurate t r a n s l a t i o n s from one language to another, argues that meaning nevertheless can s t i l l be a c c e s s i b l e . Another proponent of that view i s Herbert (1968), who holds that ... the purpose of i n t e r p r e t a t i o n i s not so much to give an accurate t r a n s l a t i o n as to make the other party understand what the speaker meant (p. 72). This, the r e l a t i o n s h i p between accuracy and (intended) meaning, i s a c e n t r a l issue. 32 Bil i n g u a l i s m i s another c e n t r a l issue. In "natural" t r a n s l a t i o n , such as occurs spontaneously i n everyday l i f e , people t r a n s l a t e both ways, i . e . , from one language i n t o the other and then back again. According to p r o f e s s i o n a l standards, however, t r a n s l a t o r s ought to tr a n s l a t e only i n t o t h e i r native language (Harris 1978, p. 422). Moreover, the untrained b i l i n g u a l i s r a r e l y a successful t r a n s l a t o r ( D e l i s l e 1980). An i n t e r p r e t e r , then, i s not the same thing as a mere b i l i n g u a l . What i s a b i l i n g u a l , f o r these purposes? This question has d i r e c t implications f o r the r i g h t to the assistance of an interpeter, and for the a c c e p t a b i l i t y of t r a n s l a t i o n s offered i n evidence. A t y p i c a l d e f i n i t i o n i s that o f f e r e d by Thiery (1982), for whom true b i l i n g u a l i s m i s having two mother tongues and enough p r o f i c i e n c y i n both languages to be accepted as a f u l l - f l e d g e d member of both speech communities. G i l e s (1979) has questioned the reasonableness of s e t t i n g such a high standard for true b i l i n g u a l i s m , i n that some degree of interference i s to be expected. An important point i n t h i s connection i s made by Bowen (1980) , who observes that the commonsense d e f i n i t i o n of b i l i n g u a l i s m as "knowing" two languages i s a quan t i t a t i v e one, while for conference i n t e r p r e t e r s the term has a q u a l i t a t i v e meaning. She cautions: A l l too often i t i s overlooked that the language professions c a l l f o r a l e v e l of performance not found as a matter of course i n the population at large. If i t were, everyone i n the United States colleges would be i n honors English; but we know that college students w i l l place at a l l l e v e l s of English, from honors to remedial (p. 201). This i s important i n that i t implies that laymen and prof e s s i o n a l s w i l l have s i g n i f i c a n t l y d i f f e r e n t views of what type or l e v e l of l i n g u i s t i c a b i l i t y i s implied i n the s. 14 r i g h t (and, i n t h i s area, judges are 33 laymen). Bowen, too, holds that a "true b i l i n g u a l " i s one who has two native.languages. A s i m i l a r view was expressed by Herbert, who says of the expectations for p r o f e s s i o n a l conference i n t e r p r e t e r s : The i n t e r p r e t e r i s under an o b l i g a t i o n to be an  authority on the language he speaks. So far as possible, and with few exceptions, he should speak only i n h i s mother tongue (1968, p. 61; emphasis i n the o r i g i n a l ) . This view would create obvious problems for the court i n t e r p r e t e r as well as for any other consecutive i n t e r p r e t e r , obviously, On the other hand, the simultaneous i n t e r p r e t a t i o n whispered i n t o the accused's ear could, i n p r i n c i p l e , be treated i n the same way as conference i n t e r p r e t a t i o n as f a r as expectations for b i l i n g u a l i s m are concerned. The r e a l i t y of second-language problems i n i n t e r p r e t a t i o n and t r a n s l a t i o n has been noted often, though i n the courtroom or the p o l i c e s t a t i o n the a b i l i t y of the p a r t i e s to continue t h e i r communication to t h e i r own s a t i s f a c t i o n from moment to moment n a t u r a l l y draws a t t e n t i o n away from the p o s s i b i l i t y of problems i n t r a n s l a t i o n . Interference or interlanguage problems i n t r a n s l a t i o n are unavoidable, according to Toury (1979), given the two i r r e c o n c i l a b l e requirements of t r a n s l a t i o n : "adequacy," being true to the o r i g i n a l text; and " a c c e p t a b i l i t y , " meeting the expectations of target-language speakers. Parks (1982), too, notes that first-language interference i s a problem i n i n t e r p r e t a t i o n , and that nonnative i n t e r p r e t e r s ( t r a n s l a t i n g i n t o English) can make phonological, omission, semantic, paraphrasing, and l e x i c a l e r r o r s . Their speech may a l s o be awkward and more formal. In an empirical study, i t was found that simultaneous i n t e r p r e t e r s do monitor t h e i r output as they proceed, but most of t h e i r s e l f - c o r r e c t i o n s were of grammar, rather than content or s t y l e (Smeleer et a l . 1980). 34 Duff(1981) elaborates on the recurrent problems of t r a n s l a t i o n i n t o E n g l i s h . By analogy, the range of d i f f i c u l t i e s he surveys can be expected to occur i n courtroom i n t e r p r e t a t i o n as well as that which occurs i n the p o l i c e s t a t i o n , and of course when s e c r e t l y recorded conversations are transcribed and tran s l a t e d l a t e r . (The absence of empirical studies of i n t e r p r e t a t i o n problems i n court a r i s e s p a r t l y from the f a c t that we do not have access to the basic data, i . e . , the source-language and target-language utterances.) Of probable but as yet undetermined s i g n i f i c a n c e are problems i n s t y l e . These d i f f i c u l t i e s would not n e c e s s a r i l y render a t r a n s l a t i o n unable to convey the basic f a c t s , but may bear on the c r e d i b i l i t y a t t r i b u t e d to the speaker or h i s persuasiveness. Duff stresses that i t i s not only the l i t e r a r y t r a n s l a t o r who need be concerned with s t y l e : Whatever d i s c i p l i n e he may be working i n , the tr a n s l a t o r [or i n t e r p r e t e r ] w i l l have to consider, f o r instance, what pu b l i c the work i s intended for and what degree of s p e c i a l i s t knowledge the reader [ l i s t e n e r ] i s expected to have. This means he w i l l have to decide on the r e g i s t e r ( f o r m a l — i n f o r m a n l , o f f i c i a l — u n o f f i c i a l ) and to maintain t h i s r e g i s t e r c o n s i s t e n t l y throughout (p. 7; emphasis i n the o r i g i n a l ) . Here i s one example he o f f e r s of such problems, where the tran s l a t o r has not maintained the same r e g i s t e r : However, we learn from Sorokin and Hart the lesson that a plethora of information i s a v a i l a b l e and can be  dug out from our l i b r a r i e s (p. 7; emphasis i n the o r i g i n a l ) . Another s t y l i s t i c problem i s that of mixed metaphors, such as t h i s passage t r a n s l a t e d (apparently) from Spanish: This i s genuine h i s t o r i c a l regression, for the process just described undoes a c u l t u r a l achievement that c o n s t i t u t e s one of the r i c h e s t legacies of c a p i t a l i s m 35 and i t s sequel, the culture of 'dependency' (p. 8; emphasis i n the o r i g i n a l ) . Problems of t h i s sort may create an impression of strangeness which could be a t t r i b u t e d to the speaker; they would not n e c e s s a r i l y be seen as a r e f l e c t i o n of the in t e r p r e t e r ' s s k i l l . The f a c t that languages are b u i l t around t h e i r own p a r t i c u l a r sets of mental concepts may also create a sense of ali e n n e s s : Language ... has i t s mental sets: i t i s through them that we 'picture' r e a l i t y i n words. These mental sets may overlap between one language and another, but they r a r e l y match exactly ... (p. 10). Since "concepts do not cover exactly the same f i e l d s of meaning i n d i f f e r e n t languages" (p. 10), the t r a n s l a t o r or i n t e r p r e t e r i s i n e f f e c t c r e a t i n g a t h i r d mental world, a t h i r d language. This aspect of t r a n s l a t i o n may not be appreciated by the judge, who has to assume that the (translated) words mean what they would mean had a native speaker of English spoken them. Ambiguity i s a problem even i n native-speaker produced texts, as i s shown by t h i s extract from a recent sociology textbook: In a l l l i k e l i h o o d , you have engaged i n actions that have been defined by some groups as deviant. Table 5.2 l i s t s some a c t i v i t e s that are i l l e g a l i n the state of Georgia and l i k e l y to be considered deviant by some groups. Few college students can honestly claim to have never committed some of these offenses ( S u l l i v a n and Thompson 1984, p. 147; emphasis added). Does t h i s mean that some of the offenses have been committed by most col l e g e students; or that only a few students can claim never to have committed any of the offenses l i s t e d ? In court i n t e r p r e t i n g , such ambiguity may be resolved i n the wrong d i r e c t i o n by the l i s t e n e r , e s p e c i a l l y i f the ambiguity i s not noted as such. Duff points out that context i s important i n reso l v i n g ambiguity (pp. 31 and 90). It may be 36 s i g n i f i c a n t that i n cross-examination, the form of the answers i s c o n t r o l l e d by the question, and attempts at c l a r i f i c a t i o n may be l i m i t e d . (The removal of i n t e r p r e t i v e context a l s o characterizes the understanding of the meaning of actions i n l e g a l proceedings i n many cases.) Duff c i t e s problems i n the source-language text as one of the co n t r i b u t i n g factors to t r a n s l a t i o n problems, and observes what could be relevant i n the present discussion: ... there i s an important f i r s t stage i n t r a n s l a t i o n ; t h i s i s when the writer 'translates' h i s thoughts i n t o words. If at t h i s stage the t r a n s l a t i o n i s already imperfect, i t i s u n l i k e l y to improve at the second, more tangible stage of t r a n s l a t i o n : from one language to another (p. 3). This l i n e of thinking can apply equally well to spoken language, as i n the concept of "inner speech." Johnson (1984) t r e a t s inner speech as being the opposite of ordinary speech. In the l a t t e r , words reveal thoughts which the speaker has i n h i s mind, whereas i n inner speech, "words are turned i n t o thoughts" (p. 221). Johnson sees inner speech as d i f f e r i n g from ordinary speech i n four ways: It i s s i l e n t ; i t i s semantically complex; i t i s s y n t a c t i c a l l y not very elaborate; and i t i s egocentric. This intrapersonal speech i s the opposite of interpersonal speech i n these ways. In addition, the c h a r a c t e r i s t i c s of inner speech render i t rather unsuitable for i n t e r c u l t u r a l communication as well as fo r the type of s p e c i f i c question-and-answer communication which characterizes courtroom examination. In f a c t , according to Johnson, the need f o r s y n t a c t i c elaboration increases as the extent of shared symbolization decreases, which i s what happens i n i n t e r c u l t u r a l communicaiton. For the ESL-speaker i n court, whether using an in t e r p r e t e r or not, inner speech from one c u l t u r a l - l i n g u i s t i c background 3 7 must be transformed i n t o extrapersonal speech i n another. This i s not i n t e r p r e t a t i o n or t r a n s l a t i o n i n the ordinary sense of the term, yet the lack of the assistance of an i n t e r p r e t e r can be said to force the ES1-speaker to engage i n some type of process d i f f e r e n t from that which a native speaker of English engages i n . He i s i n e f f e c t forced to be h i s own i n t e r p r e t e r . T r a n s l a t i o n of l e g a l language i s considered to be among the most d i f f i c u l t types of t r a n s l a t i o n . Reiss (1982) has proposed a scale of d i f f i c u l t y f o r t r a n s l a t i o n based on cu l t u r e and s p e c i a l i z a t i o n of text, with general texts less d i f f i c u l t than t e c h n i c a l texts, and t r a n s c u l t u r a l texts l e s s challenging than c u l t u r e - s p e c i f i c t e x t s . She accords greater s i g n i f i c a n c e to the f i r s t f a ctor than to the second, with gen e r a l / t r a n s c u l t u r a l being the e a s i s t , and t e c h n i c a l / c u l t u r e -s p e c i f i c the most challenging. Blum-Kulka (1981) takes a s i m i l i a r approach i n discussing t r a n s l a t i o n of i n d i r e c t speech acts. The least d i f f i c u l t y would be faced i n t r a n s l a t i n g i n d i r e c t meaning which i s p a r t l y conveyed through contextual cues and with the assistance of shared c u l t u r a l knowledge. Language-specific and c u l t u r e - s p e c i f i c speech act norms would be the most d i f f i c u l t . P a r t i c u l a r problems would be involved, then, i n conveying to the court the meaning of events which occurred outside the courtroom, i n other c u l t u r a l contexts. The only systematic discussion which focuses on the problem of achieving equivalence i n l e g a l t r a n s l a t i o n (not in t e r p r e t a t i o n ) has been of f e r e d by Weston (1983) i n a short a r t i c l e . He notes that there are sp e c i a l problems i n l e g a l t r a n s l a t i o n because "an unusually large proportion of the text i s c u l t u r e - s p e c i f i c " (p. 207; emphasis i n the o r i g i n a l ) . He describes the problem as follows: 38 [T]he t r a n s l a t o r has to render concepts i n t o the TL [target language] which d i f f e r from those f a m i l i a r to i t s speakers not just i n minor denotational ( r e f e r e n t i a l , cognitive) a t t r i b u t e s or i n connotation but p r i m a r i l y for c u l t u r a l and more s p e c i f i c a l l y , i n s t i t u t i o n a l reasons (p. 207). Sometimes the TL culture finds i t convenient to use the SL [source language] concept along with the SL term, and may merely borrow i t , e.g., "machismo," "chutzpah." In a l l other cases, says Weston, one of f i v e methods of t r a n s l a t i n g w i l l be u t i l i z e d . The i d e a l technique i s that of using a f u n c t i o n a l equivalent, which Weston c a l l s v a r i o u s l y "contextual," " c u l t u r a l , " and semantic equivalence. The contrast i s between these f u n c t i o n a l equivalences and "formal equivalence," i n that i n f u n c t i o n a l equivalence the goal i s to achieve the most "idiomatic and natural-looking [or natural-sounding] rendering" (p. 208). This Weston c a l l s " n o n - l i t e r a l t r a n s l a t i o n " (p. 210). When there i s no exact f u n c t i o n a l equivalent, then the fundamental issue i s how c l o s e — f u n c t i o n a l l y and i n terms of c o n n o t a t i o n — t h e TL term must be to the SL term i n order for i t to be acceptable. This, he notes, i s an inherently vague matter: [T]his must to a large extent be a matter for the i n d i v i d u a l t r a n s l a t o r ' s judgment and d i s c r e t i o n i n the l i g h t of h i s knowledge of the c u l t u r a l background and features of the referents concerned (p. 208). Weston's d i s c u s s i o n i s exemplary for i t s recognition of the r o l e of c u l t u r a l competence i n l e g a l t r a n s l a t i o n and the i n d i v i d u a l v a r i a t i o n among t r a n s l a t o r s , by implication, i n t h i s regard. He notes as well the absence of c r i t e r a of true f u n c t i o n a l equivalence: [N]owhere does anyone appear to have enunciated the c r i t e r i o n by which the t r a n s l a t o r may decide whether a term p e c u l i a r to the TL c u l t u r e i s or i s not an admissible t r a n s l a t i o n . This ommision i s the more c u r i o u s — a n d s e r i o u s — a s the problem confronts t r a n s l a t o r s quite r e g u l a r l y (p. 208). 39 Now, the vocabulary involved i n t r a n s l a t i o n of l e g a l documents i s probably more eso t e r i c than that used i n courtroom proceedings, but the problems w i l l s t i l l be formidable. "Word-for-word" t r a n s l a t i o n can sometimes also produce f u n c t i o n a l equivalence, but i s generally considered an a l t e r n a t i v e approach. Weston states that " l i t e r a l t r a n s l a t i o n " and "word-for-word" t r a n s l a t i o n mean the same t h i n g — l e x i c a l equivalence, with grammatical and syntactic adjustments being made as necessary. He dist i n g u i s h e s four sub-types, the f i r s t two of which are extreme. One i s the word-for-word t r a n s l a t i o n which i s also a fu n c t i o n a l equivalent (e.g., "court of appeal" f o r cour d'appel) the other i s the meaningless of even ludicrous t r a n s l a t i o n , as i n "Keeper of the Seals" f o r Garde des Sceaux. Faux  amis, the t h i r d type, are well-known and often mistaken for word-for-word t r a n s l a t i o n s . They are either not f u n c t i o n a l l y equivalent, or les s f u n c t i o n a l l y equivalent than an a l t e r n a t i v e , non word-for-word t r a n s l a t i o n . An example i s "notary" f o r notaire, i n that the notaire i s clo s e r to a lawyer than to a notary p u b l i c i n h i s functions. The l a s t type of word-for-word t r a n s l a t i o n i s that which does not correspond to any p a r t i c u l a r concept i n the TL c u l t u r e but i s s u f f i c i e n t l y c l e a r nevertheless. Again, Weston i s c a r e f u l to note that i t may be d i f f i c u l t to d i s t i n g u i s h betweeen acceptable and unacceptable t r a n s l a t i o n s : [T]here w i l l be many borde r l i n e cases, as each tr a n s l a t o r must decide f o r himself whether or not the meaning of a l i t e r a l t r a n s l a t i o n i s eit h e r close enough to the unfamiliar meaning (p. 209). Weston al s o mentions the t a c t i c s of borrowing, and creating or using neologisms, both of which represent l a s t resorts and are not quite the same as t r a n s l a t i o n . 40 Weston's observations on consistency i n t r a n s l a t i o n contribute to t h i s discussion because he d i s t i n g u i s h e s three goals for consistency; consistency i n method or approach to t r a n s l a t i n g ; consistency of t r a n s l a t i o n of terms within a given text; and consistency i n applying the law i t s e l f . Weston holds that i t i s not possible .to t r a n s l a t e a l l the c u l t u r e - s p e c i f i c terms i n a s i n g l e text with the same technique; i n f a c t , i t w i l l r a r e l y be p o s s i b l e to use the same technique for a l l the items i n a set. Intratextual consistency i n the t r a n s l a t i o n of s p e c i f i c terms, though, i s necessary: [T]he reader must be able to be sure that r e p e t i t i o n of a term ref e r s to the same thing the term d i d when i t was used before, while use of a d i f f e r e n t term betokens a d i f f e r e n t referent (p. 210). On the other hand, d i f f e r e n t SL context w i l l require the use of a d i f f e r e n t TL term to t r a n s l a t e the same SL term (see p. 211). Again, the primary problem i n p r a c t i c e i s deciding when the SL context i s s u f f i c i e n t l y d i f f e r e n t to warrant using a d i f f e r e n t TL term. Given the complexity of l e g a l t r a n s l a t i o n / i n t e r p r e t a t i o n and the challenge i t poses for court i n t e r p r e t e r s , i t would be expected that high standards for t r a i n i n g are the norm. However, Pousada (1979) notes that the courts i n the United States have taken a somewhat relaxed a t t i t u d e concerning both the i n t e r p r e t e r ' s s o c i a l r o l e and h i s a b i l i t y to i n t e r p r e t : More than once, the courts have u t i l i z e d less than d i s i n t e r e s t e d p a r t i e s for i n t e r p r e t i n g , including the a r r e s t i n g o f f i c e r s , the r e l a t i v e s of crime victims, and members of the opposing party. Often i n d i v i d u a l s who have no experience as i n t e r p r e t e r s but who happen to be i n the courtroom at the time are r e c u r i t e d (p. 199). Both pr o b l e m s — r o l e and competence—could be ameliorated through c a r e f u l t r a i n i n g and c e r t i f i c a t i o n of i n t e r p r e t e r s . Pousada recommends having a 41 trained l i n g u i s t review the t r a n s l a t i o n s made "for evidence of incompetence" whenever there i s any question raised (see p. 203). In B r i t i s h Columbia, Canada, the Task Group on Court Reporting (1985) addressed these problems and made some strong recommendations. They rejected the argument that "a poor inte r p r e t e r i s better than no int e r p r e t e r at a l l , " and stated instead that "an inadequate i n t e r p r e t e r amounts to no i n t e r p r e t e r at a l l " (p. 6). They ground t h e i r viewpoint i n considerations of due process and f a i r n e s s : Can i t be argued j u s t i c e has been done i f the accused person only p a r t i a l l y understands the proceedings, or i f the testimony of a witness i s p a r t i a l l y misinterpreted? (p. 6) The Task Group noted with dismay the absence of o f f i c i a l guidelines for in t e r p r e t e r s . They point out that Interpreters often do not know whether, for example, they are to i n t e r p r e t "word for word" what i s said, or are they to summarize and c l a r i f y ? Are they to int e r p r e t everything that i s said, or only what appears to [be] relevant? (Appendix IX, n.p.) Continuing, the Task Group made an observation which was not encountered anywhere else i n t h i s study, regarding what laymen mean by the term "word for word" i n t e r p r e t i n g : It i s important to note the d i s t i n c t i o n which Interpreters themselves make between "verbatim" i n t e r p r e t i n g and "accurate" i n t e r p r e t i n g . The f i r s t method gives each word i n one language i t s t e c h n i c a l equivalent i n the other, while the second method takes account of the idiomatic nature of language and renders what i s said i n one language i n words of the other language that accurately convey t h e i r true meaning, tone and s t y l e . It i s usually, but not always, t h i s notion of "accurate" i n t e r p r e t i n g which i s meant by non-interpreters when they speak of i n t e r p r e t i n g "verbatim" or "word for word" (Appendix IX, m.p.). This suggests that the t r a n s l a t i o n s which judges receive are not always as l i t e r a l as they may be l i e v e them to be. 42 The c r u c i a l issue, though, i s o v e r a l l competence. The Task Group noted that the observations made i n a report by the Canadian Commission on B i l i n g u a l i s m and B i c u l t u r a l i s m t h i r t e e n years e a r l i e r s t i l l hold true today. The Task Group states: It seems d i f f i c u l t to accept the f a c t that i n t e r p r e t e r s , on whose competence and f i d e l i t y the property or freedom of an i n d i v i d u a l may depend, are not given any s p e c i a l t r a i n i n g and are not required to e s t a b l i s h t h e i r q u a l i f i c a t i o n s by means of an o f f i c i a l examination. If court stenographers are tested, why  not i n t e r p r e t e r s ? (Appendix IX, n.p.; emphasis added) Not s u r p r i s i n g l y , the Task Group recommended both t r a i n i n g and t e s t i n g for court i n t e r p r e t e r s . The Task Group a l s o pointed out something which has d i r e c t implications for the e q u a l i t y issue as i t applies to s. 14: The renumeration which court i n t e r p r e t e r s receive v a r i e s widely across the country, with Nova Scotia i n t e r p r e t e r s earning approximately four times as much as t h e i r B r i t i s h Columbia counterparts ($29,500 per year versus $7,472—see p. 14). They a l s o noted an anomaly i n the Canadian f e d e r a l government: Simultaneous i n t e r p r e t e r s employed by the government i n Ottawa are paid $280 per day, while the i n t e r p r e t e r s employed by the immigration a u t h o r i t i e s i n Vancouver receive only $20 per hour of a minimum of two hours of work, a f t e r which they receive $12 for each a d d i t i o n a l hour. If t h i s salary d i f f e r e n t i a l r e f l e c t s the d i f f i c u l t y of the work involved—simultaneous i n t e r p r e t a t i o n versus mostly consecutive i n t e r p r e t a t i o n — t h e n we must address the issue as i t a r i s e s i n the case of the party i n t e r p r e t e r i n the courtroom. The Task Group f e l t that graduation from a recognized school for i n t e r p r e t e r s , or c e r t i f i c a t i o n by an appropriate body would be much preferable to an ad hoc assessment of competence by the t r i a l judge just before the t r i a l begins, 43 e s p e c i a l l y i n that the the judge "may not be able to e s t a b l i s h the int e r p r e t e r ' s l e v e l Of understanding of the witness's testimony" (p. 7). The only recent systematic t r e a t i s e on the t r a i n i n g of int e r p r e t e r s i s a short work by Weber (1984), who has had twenty years of experience as an i n t e r p r e t e r and has taught i n t e r p r e t a t i o n on three continents. While he focuses on conference i n t e r p r e t e r s , he states that as f a r as t r a i n i n g and a b i l i t i e s are concerned, court i n t e r p r e t e r s should be veiwed i n the same way (see p. 1, footnote 1). Conference in t e r p r e t e r s are considered to be a highly q u a l i f i e d and very professional group, and the question of whether the same standards should be applied to court i n t e r p r e t e r s i s an important issue, and one which may a r i s e i n i n t e r r e l a t i n g ss. 14 and 15 of the Charter. For purposes of comparison, we may note that Weber r e l a t e s that, according to a recent membership survey conducted by the International Association of Conference Interpreters, 95 percent of the respondents between the  ages of 30 and 45 had been train e d i n a u n i v e r s i t y program. The greater proportion of u n i v e r s i t y - t r a i n e d i n t e r p r e t e r s , compared to t r a n s l a t o r s , may be due to the f a c t that poor i n t e r p r e t a t i o n i s immediately noticeable, Weber says, whereas "one can be a poor t r a n s l a t o r f o r a long time before complaints a r i s e " (p. 2). Whether detection of incompetence i n court i n t e r p r e t i n g i s as r e l i a b l e as detection of incompetence i n conference i n t e r p r e t i n g i s a question which bears on the c e r t i f i c a i o n issue. During h i s career, Weber says, he has met only one or two people ("exceptionally g i f t e d " ) who were capable of being good t r a n s l a t o r s or int e r p r e t e r s without having had the benefit of formal t r a i n i n g . The impl i c a t i o n f o r court i n t e r p r e t i n g i s c l e a r : If t r a i n i n g i s important 44 for i n t e r p r e t a t i o n i n i n t e r n a t i o n a l meetings, i t i s even more important where one's l i b e r t y may be at stake. Both t r a n s l a t o r s and i n t e r p r e t e r s , Weber f e e l s , should complete courses i n sight t r a n s l a t i o n , p r e c i s w r i t i n g , and conference terminology and parliamentary procedure. (There i s some problem i n applying these requirements holus bolus to court i n t e r p r e t e r s , who may not need to know anything about ei t h e r conference or parliamentary procedures.) Like Weston, Weber i s s e n s i t i v e to the problem of d i s t i n g u i s h i n g s i g n i f i c a n t mistakes from i n s i g n i f i c a n t ones. He asks, Should a wrongly translated word, for instance, be counted as a meaning error i f i t changes the meaning, or should i t just count as an error i n terminology? (p. 47) Such a question implies the similar question concerning the assessment of i n t e r p r e t e r adequacy. That i s , i f the adequacy of the t r a n s l a t i o n i t s e l f i s d i f f i c u l t to measure, how can we hope to t e s t the adequacy of the i n t e r p r e t e r (on the spot, i n the courtroom)? Before moving to the t r a i n i n g of i n t e r p r e t e r s i n p a r t i c u l a r , we must note a l i m i t a t i o n i n Weber's d i s t i n c t i o n between t r a n s l a t i o n and i n t e r p r e t a t i o n just on the basis of whether the transposed product i s meant to be read or heard: In the courtroom, much of what i s said i s a l s o meant to be read l a t e r i n the form of the t r i a l t r a n s c r i p t , e.g., on appeal. The d i s t i n c t i o n between i n t e r p r e t a t i o n and t r a n s l a t i o n i s further b l u r r e d by texts such as a confession d i c t a t e d by a suspect i n his native language and translated i n t o English by an i n t e r p r e t e r , and a confession written out i n English and translated f or the suspect p r i o r to h i s signing i t . The i n t e r p r e t e r ' s s k i l l s and a b i l i t i e s are impressive. Because of the demands placed on them i n performing simultaneous i n t e r p r e t a t i o n at 45 conferences, i n t e r p r e t e r s must have, i n addit i o n to l i n g u i s t i c fluency i n the two languages: i n t e l l i g e n c e , a b i l i t y to abstract and paraphrase, quick reaction time, good memory, poise i n personal presentation, and a su i t a b l e v o i c e . Their t r a i n i n g should include sight t r a n s l a t i o n , consecutive i n t e r p r e t a t i o n , and simultaneous i n t e r p r e t a t i o n . "The most d i f f i c u l t aspect of i n t e r p r e t i n g i s the speed with which i t must be accomplished" (p. 27). The p r a c t i c a l test of i n t e r p r e t a t i o n i s whether the l i s t e n e r has to make any spe c i a l e f f o r t besides l i s t e n i n g (p. 28). These standards i n d i c a t e what excellence i n i n t e r p r e t i n g e n t a i l s , but they do not i n d i c a t e what the cut-off points are for d i s t i n g u i s h i n g adequate from inadequate i n t e r p r e t a t i o n . One important l i n g u i s t i c aspect of i n t e r p r e t a t i o n i s " c r e d i b i l i t y , " that i s , the in t e r p r e t e r ' s "aptitude to sound convincing" (p. 49). Herbert (1968), i n his e a r l i e r handbook for i n t e r p r e t e r s , put the matter t h i s way: When, owing to some personal handicap such as shyness, i n s u f f i c i e n t f a m i l i a r i t y with the language used, etc., the speaker has not brought h i s speech out as he should have done and as he wanted to, the i n t e r p r e t e r i s not precluded from doing somewhat better than the o r i g i n a l (p. 59; emphasis added). A witness might be forced to communicate i n a language other than his strongest language because the inter p r e t e r provided speaks only one of the witness's other languages, e.g., an in t e r p r e t e r who speaks only the country's n a t i o n a l language (such as Tagalog) but the witness's mother tongue i s a reg i o n a l language (such as Ilocano). The analogy which suggests i t s e l f here i s that of the ESL-speaker t e s t i f y i n g without the ai d of an i n t e r p r e t e r — t h e r e , too, there i s i n s u f f i c i e n t f a m i l i a r i t y with the language used. The in t e r p r e t e r , i n Herbert's scheme, might improve the speech by t r a n s l a t i n g i t from ESL in t o native-speaker-like 46 En g l i s h . (Of course, the issue of 'speaks or understands' English would take precedence.) Though 99 percent of the professional i n t e r p r e t e r ' s work i s i n simultaneous i n t e r p r e t a t i o n normally, Weber notes that consecutive i n t e r p r e t a t i o n i s s t i l l used when there i s a need for "a high degree of accuracy" (p. 34). This suggests that the court i n t e r p r e t e r ' s work i n performing consecutive i n t e r p r e t a t i o n should not be considered less demanding, but should be seen as implying a higher standard of accuracy. Weber states that i n general, i n t e r p r e t a t i o n can never be expected to be "absolutely accurate i n meaning" and "contain a l l nuances of the o r i g i n a l " (p. 3), but Herbert (1968) takes a d i f f e r e n t view: Under normal conditions the consecutive i n t e r p r e t e r  should d e l i v e r a better speech than the o r i g i n a l , and that for two reasons. The f i r s t i s that he should be a p r o f e s s i o n a l p u b l i c speaker, the second that he comes afterwards (p. 60; emphasis i n the o r i g i n a l ) . Weber adds that i n t e r p r e t e r s should be the i n t e l l e c t u a l equals of those whom they i n t e r p r e t (p. 4). A d d i t i o n a l l y , while i n t r a n s l a t i o n i t i s not necessary to always "follow the o r i g i n a l sentence structure" (p. 32), says Weber, i n consecutive i n t e r p r e t a t i o n the r u l e i s that the i n t e r p r e t a t i o n must contain ... everything that i s necessary to the understanding of the o r i g i n a l message that the speaker intended to  communicate, including a l l the nonverbal content (p. 50; emphasis added). Bringing the speaker's intentions i n t o the p i c t u r e may complicate the s i t u a t i o n from a l e g a l point of view, i t should be noted. Another unresolved issue i s the r o l e of nonverbal communication i n testimony. Does the Charter guarantee the r i g h t to have one's nonverbal communication, i n c l u d i n g p a r a l i n g u i s t i c s , t r a n s l a t e d adequately? If so, 47 does this imply native-speaker English fluency on the part of the court interpreter? 48 P r a c t i t i o n e r s ' Views In the interviews with p r a c t i t i o n e r s , i t seemed that there were considerable d i f f e r e n c e s among respondents with respect to awareness of i n t e r p r e t a t i o n problems, with b i l i n g u a l s who had observed courtroom testimony having the most penetrating i n s i g h t s to o f f e r . The two b i l i n g u a l lawyers, i n p a r t i c u l a r , were well acquainted with these problems. One estimates that he uses i n t e r p r e t e r s i n 70 to 80 percent of h i s cases. With his c u l t u r a l and l i n g u i s t i c background, he f e e l s that he i s "able to understand the nuances of the language" h i s c l i e n t s use and i s better able to in t e r p r e t than most court i n t e r p r e t e r s . Having to speak to his c l i e n t s i n the courtroom i n English, through an in t e r p r e t e r , i s a considerable handicap, and he f e e l s that "a great deal of what they say i s usually l o s t i n t r a n s l a t i o n . " So f a r , there have been no arguments made to the e f f e c t that s. 15 requires that every accused be accorded the r i g h t to be examined i n h i s native language when that i s pos s i b l e ( i . e . , with others i n the courtroom having to make do with the inconvenience of hearing t r a n s l a t e d speech). The attorney stated that, as a group, Punjabi-English i n t e r p r e t e r s "are not r e a l l y p r o f i c i e n t at a l l i n the language." He could think of only one or two that he had encountered i n the previous f i v e or s i x years that he would consider q u a l i f i e d , "and even those are not n e c e s s a r i l y the best." He himself had been i n Canada for about f i f t e e n years, had studied i n England for three or four years p r i o r to that, and had studied language for many years, but acknowledged that even he sometimes had d i f f i c u l t y i n i n t e r p r e t i n g the nuances of Punjabi i n t o E n g l i s h . 49 The other b i l i n g u a l lawyer, an anglophone who had l i v e d i n South America f o r most of h i s early l i f e , r a i s e d the problem of i n t e r p r e t i n g the speech of witnesses who speak r a p i d l y . Some of his c l i e n t s posed such a problem because they were ... extremely well-spoken i n t h e i r own language, ... spoke at extreme speed, ... c u l t u r a l l y were used to dealing with an o f f i c i a l speaking i n bureaucratese, almost, and using t e n - s y l l a b l e words very quickly, to the point that I could hardly understand them i n Spanish, and that the i n t e r p r e t e r would then answer i n  a f a r more s i m p l i f i e d fashion, being unable to cope; and that the importance of what the person was saying and the f l a v o r of what they were saying was l o s t (emphasis added). What i s l o s t i n t r a n s l a t i o n might not include important f a c t u a l m a t e r i a l , but here would be a loss of thing which "would c e r t a i n l y have helped the c r e d i b i l i t y of the witness." He pointed out the existence of d i f f e r n e c e s i n i n t e r p r e t i n g the judge's questions compared to the witness's answers. The judges ask standard questions, and explain at the beginning what the c r i t i c a l words mean. The i n t e r p r e t e r has translated those words a dozen or a hundred times before, has found words to say that word, and the questions that the judges ask are generally s i m p l i f i e d . This i s not true of the witness's r e p l i e s . There, the nuances, "the kind of thing that a decider of fac t [e.g., judge] hangs h i s hat on," can involve f i n e d i f f e r e n c e s , so that "not getting quite the r i g h t word or s i m p l i f y i n g a sentence or whatever errors were made when "peripheral" things were being discussed, when the accused was not the focus. He had observed that i n t e r p r e t e r s ... do struggle more to t r a n s l a t e c o r r e c t l y or to ... make sure that the fellow understands when the question's being d i r e c t e d at him, whereas when they're just sort of saying what i t i s that the policeman's 50 saying [ i . e . , simultaneous i n t e r p r e t a t i o n ] , they may say, "Well, he found you with the goods," and what r e a l l y happened was twenty words went by, you know. They don't think i t ' s that important to provide  d e t a i l s (emphasis added). Another v a r i a b l e he i d e n t i f i e d was that of the type of case. "[T]here's no d i s t i n c t i o n made between, oh, t h i s person knows enough to handle a s h o p l i f t i n g t r i a l , but not a rape t r i a l or a drug conspiracy t r i a l . " Asked to elaborate, he i d e n t i f i e d conspiracy and consent as two key concepts which a r i s e i n d i f f i c u l t cases and which pose sp e c i a l problems for court i n t e r p r e t e r s . In complex cases, f a r more sophisticated l e g a l defenses are l i k e l y to be r a i s e d , and lawyers get involved i n very f i n e points of law. One of the s p e c i f i c problems i n content which a r i s e s i s that of subjective states of mind. The immigration adjudicator explained that, i n immigration hearings, the damage caused by an inadequate i n t e r p r e t e r often depends on the type of case. In refugee a p p l i c a t i o n cases, the issues are p r i m a r i l y f a c t u a l , ...for example, he comes from t h i s p a r t i c u l a r country, he has come to Canada to stay permanently, he d i d not apply for or receive a v i s a , and so on. The contrast, there are subjective issues i n v o l v i n g employment, which depends i n law p a r t i a l l y upon whether the person reasonably expected to receive compensation. Another issue, mentioned by one of the b i l i n g u a l lawyers, concerns the i n t e n t i o n to remain i n Canada (which i s a v i o l a t i o n of v i s a r e g u l a t i o n s ) , as opposed to the mere de s i r e to remain i n Canada. The d i f f e r e n c e i s c r i t i c a l . He stated: [T]rying to describe the d i f f e r e n c e s between inten t i o n and d e s i r e to somebody who i s not p r o f i c i e n t i n English, and even [to] a l o t of i n t e r p r e t e r s , i s very, very tough, very, very tough. 51 The i n t e r p r e t e r must be fl u e n t i n both languages, but often i s not f l u e n t i n either, according to the court i n t e r p r e t e r t r a i n e r . Most are immigrants to Canada, and t h e i r p r o f i c i e n c y i n t h e i r f i r s t language "often i s not tested at a l l i n any shape or form by the court o f f i c i a l s here." It i s r e l a t i v e l y easy to detect problems i n English, he observed, and yet one s t i l l finds " i n t e r p r e t e r s who have very obviously a language p r o f i c i e n c y i n English which i s only a few notches above the person they i n t e r p r e t f o r . " He said he had seen cases where the witness spoke better English than the i n t e r p r e t e r . The immigration case presenting o f f i c e r mentioned that " i t ' s happened that some of our o f f i c e r s are more fluen t i n a p a r t i c u l a r language than the i n t e r p r e t e r they're using." The problem of untrained, lay i n t e r p r e t e r s ' l i n g u i s t i c a b i l i t y was discussed by another court i n t e r p r e t e r with extensive experience. He had had many opportunities to observe the performance of other i n t e r p r e t e r s over the years. [I] would l i s t e n to court proceedings where someone, a l a y person, would have been c a l l e d as an i n t e r p r e t e r to help out an accused ... and quite often of course ... I might happen to understand the language i n question, unbeknownst to both the i n t e r p r e t e r and the accused, and I would be s i t t i n g i n the background l i s t e n i n g to a l l t h i s s t u f f that's going on and of course quite often i t was a nightmare, simply because the lay person who may know the language or may know a smattering of the language was t r y i n g to act as an i n t e r p r e t e r , i n t e r p r e t i n g very t e c h n i c a l l e g a l testimony which would come out sometimes t o t a l l y  backward or t o t a l l y d i f f e r e n t (emphasis added). The Spanish-speaking lawyer added one of h i s own f a v o r i t e "horror s t o r i e s , which concerned someone who had been acting as an immigration hearing i n t e r p r e t e r for ten or f i f t e e n years: I thought he was German. He's from Spain, l e f t there i n 1936, has never been back, had e s s e n t i a l l y 52 forgotten the language, and then as his other business a c t i v i t i e s started to d e c l i n e because he got older, he started doing more and more of t h i s [ i n t e r p r e t i n g ] . He can't have a l e g a l conversation with me i n English; I don't mean about issues but just using those kind of words. And i n Spanish ... he stumbled along and was t r y i n g to be h e l p f u l and therefore rephrased questions, re-invented the guy's answers, shortened them, lengthened them, e x p l a i n e d — I mean, i t was just b i z a r r e . And t h i s guy's obviously f r i e d or helped, I don't know what, a v a r i e t y of people, since then. Another example he r e l a t e d i l u s t r a t e s the problems involved with i n t e r p r e t e r s who speak more than one language but are not c e r t i f i e d as court i n t e r p r e t e r s . The i n t e r p r e t e r i n the following, case was P o l i s h and was t r a n s l a t i n g the Czechoslovakian language: [His t r a n s l a t i o n ] kept s l i p p i n g from Polish i n t o Czechoslovakian and back and f o r t h . He just wasn't good at i t . Probably plenty good for a conversation, or an interview i n your o f f i c e ; not good enough i n the context of a l e g a l hearing, where there's a t r a n s c r i p t being produced and where the only thing that gets on the t r a n s c r i p t i s what he says .... So i f there's any nuance, i f there's any s p e c i f i c meanings that my c l i e n t i s attempting to convey ... that's just l o s t . Another general area discussed by interviewees was that of the detection of inadequate i n t e r p r e t a t i o n when i t does happen. The South Asian lawyer observed that an ordinary judge or lawyer could not do t h i s : It i s only when you have a lawyer or another person s i t t i n g i n with a command of the language that you w i l l know whether or not an i n t e r p r e t a t i o n i s proceeding properly. It i s not alwyas enough just to detect inadequacies, he explained. In one case, the judge refused to s t r i k e an incorrect t r a n s l a t i o n from the record even though the i n t e r p r e t e r h e r s e l f admitted that she had made a mistake and was w i l l i n g to change her i n t e r p r e t a t i o n . The other b i l i n g u a l lawyer f e l t that the greatest problems were not those which 53 were fla g r a n t , but those where the answers are not evidently-inappropriate: The h o r r i b l e fear i s when ... the question was A i t comes out i n the fellow's language A' ... and he answers, A', and then ... instead of the answer coming back as X, i t comes back [ i n the t r a n s l a t i o n ] as X*, and nobody r e a l i z e s [ t h a t ] . " I n t u i t i o n " was the most common des c r i p t i o n of how inadequacies are detected. An immigrant services worker claimed that some of her c l i e n t s had complained about inadequate i n t e r p r e t a t i o n , and that they had detected i t by i n t u i t i o n : "They could f e e l i t . " The immigration case presenting o f f i c e r said that, with experience, "you know almost by sense of f e e l ... when somebody's getting a l i t t l e o f f track because the i n t e r p r e t a t i o n i s n ' t accurate." The immigration adjudicator a l s o r e f e r r e d to an i n t u i t i v e method: "Not empirical, purely. Just observing the s i t u a t i o n and being aware that things aren't coming across r i g h t . I t ' s not making much sense." The court i n t e r p r e t e r t r a i n e r said almost the same thing: "You sort of sense there i s something wrong." I n t u i t i o n , though , may be rendered less e f f e c t i v e by what the p r o v i n c i a l judge who was interviewed c a l l e d the working assumption that i n t e r p r e t e r s are doing t h e i r job s a t i s f a c t o r i l y . The immigration adjudicator explained that, e s p e c i a l l y i f the i n t e r p r e t e r i s someone who i n t e r p r e t s r e g u l a r l y for the Immigration Commission, [w]e assume they're doing a good job because we haven't had problems with them i n the past. You just assume that they're t r a n s l a t i n g accurately. S t i l l , there i s a " t e s t " p r i o r to the commencement of an immigration hearing. The i n t e r p r e t e r i s asked to i n s t r u c t the subject of the i n q u i r y ("the person concerned") to t e l l the adjudicator how many people are i n the room, or some s i m i l a r thing. If the answer i s f a c t u a l l y 54 correct, the i n t e r p r e t e r has passed the t e s t . Of course, the f a c t that the i n t e r p r e t e r passes such an abbreviated test does not mean that there are no l i m i t a t i o n s at a l l , as one lawyer observed: [It] doesn't n e c e s s a r i l y mean that the i n t e r p r e t e r i s going to be able to deal with the qu a s i - l e g a l terms, the jargon, from the [immigration] Act, and things l i k e that, when the adjudicator i s t r y i n g to make explanations or the CPO [case presenting o f f i c e r ] i s reading the report i n t o the record or something l i k e that. The i n t e r p r e t e r may s t i l l have a problem with those types of things. Another problem i s the i n t e r p r e t e r who speaks the foreign languge very well but does not know how to i n t e r p r e t , as the adjudicator pointed out: "It ' s one thing to speak a language; i t ' s quite something e l s e to be an in t e r p r e t e r . " However, the adjudicator agreed that i f the i n i t i a l "competencey t e s t " i s passed, t h i s would create a presumption that the inte r p r e t e r i s s a t i s f a c t o r y and the t r a n s l a t i o n would be taken as adequate unless something indi c a t e d otherwise. A very i l l u m i n a t i n g perspective on the detection of inadequate i n t e r p r e t a t i o n i n the courtroom was offered by the court i n t e r p r e t e r t r a i n e r , who had been i n charge of a community college t r a i n i n g program for court i n t e r p r e t e r s and had had considerable experience himself as an in t e r p r e t e r . He, too, ind i c a t e d that i n general there would have to be a major problem i n understanding before observers would begin to worry about the q u a l i t y of i n t e r p r e t a t i o n : [ l ] t r e a l l y takes a l i n g u i s t or someone who has done i n t e r p r e t i n g i n order to be able to evaluate. I don't think that the counsel or the judges f o r that matter are competent enough to judge the performance of an i n t e r p r e t e r . The working assumption that the inter p r e t e r i s p r o f i c i e n t means that i n t e r p r e t e r s are not treated as expert witnesses are treated, but, he f e l t , they should be. 55 He went on to explain how in t e r p r e t e r s seek to create a good impression i n court. For instance, admitting mistakes i s the mark of a good i n t e r p r e t e r ; such a person i s s u f f i c i e n t l y confident of t h i s a b i l i t y that occasional mistakes w i l l not cast doubt on h i s basic competence. In contrast, he said, a poor i n t e r p r e t e r w i l l conceal mistakes: [A] poor i n t e r p r e t e r i s very insecure i n [his] own a b i l i t y to i n t e r p r e t , because i t i s a d i f f i c u l t job, and unless you are p r o f i c i e n t , unless you know the techniques and you have done i t for a while, you w i l l have d i f f i c u l t i e s , constant d i f f i c u l t i e s .... If that i s the normal state of operation for an i n t e r p r e t e r , then he w i l l not say anything. He w i l l just keep doing h i s best, which i s not r e a l l y good enough. However, a poor i n t e r p r e t e r may nevertheless act i n a confident manner i n many cases, he explained: They f e e l that t h e i r language p r o f i c i e n c y i s good enough, and then they would act a s s e r t i v e l y and would ... appear confident. They may do things which are somewhat uneth i c a l , such as, they would t a l k to the ... witness ... and they w i l l make observations or recommendations. An i n t e r p r e t e r who i s unsure of h i s p r o f i c i e n c y i n i n t e r p r e t a t i o n o r . i n one of the languages might avoid slowing down the speed of h i s in t e r p r e t a t i o n i n order not to be seen as inadequate. He o f f e r e d an example of t h i s . A mock t r i a l was being conducted by law students; simultaneously, i n t e r p r e t e r s - i n - t r a i n i n g were being t e s t . The student lawyers were very pleased with one in t e r p r e t e r ' s performance: She interpreted quickly, and the students l i k e her "general a t t i t u d e . " Unfortunately, the t r a i n e r pointed out, ... her i n t e r p r e t a t i o n was quite inaccurate, and that was seen only by the examiners, who were b i l i n g u a l . And so i t does not mean that every problem i n i n t e r p r e t a t i o n w i l l manifest i t s e l f . 56 The f a c t that u s u a l l y only global assessments of t h e i r p r o f i c i e n c y are being made allows some marginal i n t e r p r e t e r s to take maximum advantage of t h e i r a b i l i t y to give o f f an a i r of confidence. Experience i s an important f a c t o r . A beginning i n t e r p r e t e r ... may appear shy and timid because [he doesn't] know who i s who i n the courtroom, who i s the judge, who i s the c l e r k , and what are the other people present doing, and so that i n t e r p r e t e r w i l l stay i n the background .... Sometimes, i n f a c t , he stated, they have d i f f i c u l t y l o c a t i n g the courtroom. The very experienced marginal i n t e r p r e t e r who believes himself to be a good or at le a s t adequate i n t e r p r e t e r , i n contrast, acts rather d i f f e r e n t l y : [H]e would walk i n very confidently. By now he knows the c l e r k , he knows many of the lawyers, so he would just joke l i k e an o l d pro, i n a sense, and then he would continue l i k e a p r o f e s s i o n a l , you know, he would f e e l l i k e a pro, and so he'd be confident and would continue p r o j e c t i n g t h i s image. Such i n t e r p r e t e r s may enjoy a good r e p u t a t i o n — n o complaints were ever made, and they were always a v a i l a b l e when c a l l e d upon. The better i n t e r p r e t e r s , the respondent pointed out, "are not always a v a i l a b l e , but for the court administrator i t ' s easiest to deal with someone who i s av a i l a b l e , who comes when c a l l e d . " Many of the courts use inter p r e t e r agencies because of the convenience they o f f e r . A l l that i s necessary i s to make one phone c a l l ; the agency then has the problem of combing i t s l i s t s to f i n d an a v a i l a b l e i n t e r p r e t e r i n the languge needed. " I t ' s very easy to be r e g i s t e r e d with an agency," the respondent pointed out. "No t e s t i n g i s required, nothing of that kind." To f i n i s h t h i s section, we may note that the p r o v i n c i a l court judge was able to r e c a l l "the odd instance with a French i n t e r p r e t e r where, even with my poor French, I_ can t e l l the t r a n s l a t i o n i s not 57 accurate, "but he had never himself been involved i n a case where i t had been necessary to adjourn the t r i a l i n order to get another i n t e r p r e t e r , though he d i d know that that had happened. The Legal Perspective The s o c i a l science and p r a c t i t i o n e r s ' views provide a clear p i c t u r e of court i n t e r p r e t i n g as a demanding profession, one which c a l l s for formal t r a i n i n g i n addition to considerable l i n g u i s t i c and i n t e l l e c t u a l a b i l i t i e s . Even more important, we have seen that adequacy tends to be assumed, but should not be. When problems are detected , the lay person has r e l i e d on i n t u i t i o n or " f e e l . " Only the i n d i v i d u a l who i s himself equally s k i l l e d i n the two languages i s able to make a d i r e c t assessment of the adequacy of i n t e r p r e t a t i o n . In the reported cases, l i t t l e a t t e n t i o n i s paid to these issues (though other issues a r i s e , which w i l l be dealt with l a t e r , i n the section on courtroom i n t e r a c t i o n ) . The few cases which do deal with the adequacy of i n t e r p r e t a t i o n and t r a n s l a t i o n w i l l be presented below i n order to i l l u s t r a t e what might be taken to be the court's a t t i t u d e toward challenges to the adequacy of i n t e r p r e t a t i o n . In R. v. Berger (1975), a German-speaker was accused of murdering a man who, he said, had sexually molested him. At t r i a l , neither the Crown nor the defense counsel inquired i n t o the i n t e r p r e t e r ' s q u a l i f i c a t i o n s or his actual competence. During the course of the t r i a l , there arose concern regarding h i s adequacy on the part of both defense counsel, who was himself " f a m i l i a r with" German, and a German-speaking p s y c h i a t r i s t who was present i n the courtroom. Audio tapes of the t r i a l were l a t e r analyzed by a member of the bar of B r i t i s h Columbia who was " f l u e n f ' i n German. (The report does not sp e c i f y that the 58 foreign-language utterances had been recorded, but they must have been.) He thought he had found 34 errors i n t r a n s l a t i o n . An appeal of the co n v i c t i o n was taken to the B r i t i s h Columbia Court of Appeal. On appeal, defense counsel suggested that i t was the t r i a l judge who had been responsible for ensuring that the accused understood a l l of the proceedings and who ought to have inquired i n t o the interpreter's competence. Though t h i s i s a basic issue, the Court of Appeal d i d not deal with i t , focusing instead on the al l e g e d mistakes found by the German-speaking lawyer. They were not r e a l l y mistakes, the court held. The court could f i n d not " s i g n i f i c a n t d i f f e r e n c e s " between the court i n t e r p r e t e r ' s t r a n s l a t i o n s and those made by the lawyer, who had been c a l l e d as an expert witness (p. 376). The court d i d not say that there were no d i f f e r e n c e s — o n l y that they d i d not matter. Unterreiner v. The Queen (1980), discussed e a r l i e r , also involved questions about the adequacy of i n t e r p r e t a t i o n . (An untrained b i l i n g u a l , i t w i l l be r e c a l l e d , had been c a l l e d to i n t e r p r e t . ) Problems arose at the beginning of the accused's cross-examination of the chief Crown witness against him regarding the i n t e r p r e t e r ' s t r a n s l a t i o n of the word " v i o l e n t . " . The accused disagreed with the i n t e r p r e t e r ' s rendering of the Eng l i s h word " v i o l e n t " as "nervous." Eventually, even the judge himself entered the fray to add h i s own d e f i n i t i o n of the word. The appeal was not decided on t h i s point, but the appellate court here d i d agree that there had been a d e n i a l of natural j u s t i c e : Both the competence and the i m p a r t i a l i t y of the i n t e r p r e t e r should have been tested. Accuracy of the t r a n s l a t i o n i s important at the stage i n the l e g a l proceedings where the accused makes his i n i t i a l plea to the charge. In 59 R. v. Beaulieu (1981), the accused was allowed to withdraw a g u i l t y plea he had made to a charge of dangerous d r i v i n g because the int e r p r e t e r at t r i a l had tr a n s l a t e d " i n a manner dangerous to the p u b l i c " as "dans un sense dangereux au p u b l i c , " when i t should have been, "d'une facon dangereuse pour l e p u b l i c . " Stevenson, J . acknowledged that accuracy i n t r a n s l a t i o n i s "a very important f a c t o r " i n such circumstances, but opined as well that whether an accused understands what he i s pleading g u i l t y to i s only one factor to be considered i n deciding whether he should be permitted to withdraw h i s p l e a . (Often the accused has had le g a l advice p r i o r to entering a plea, so understanding the charge when i t i s read out i n court may be less i m p o r t a n t — t h i s seems to be the court's thinking i n t h i s type of matter.) The contrast with Berger i s i n t e r e s t i n g . In Berger the importance of accurate t r a n s l a t i o n was recognized, but posssible shortcomings were ruled as having no r e a l s i g n i f i c a n c e ; whereas i n Beaulieu we have a case where a r e l a t i v e l y small t r a n s l a t i o n e r r r o r was the basis f o r the d e c i s i o n i n the appellant's favor. The other case where the adequacy of t r a n s l a t i o n was dealt with at some length i s R. v. Johnny and B i l l y (1981), another case from B r i t i s h Columbia, and one of only two cases located where l i n g u i s t s were used as expert witnesses. At the murder t r i a l of the two accused, the defense sought to block the introduction i n evidence of taped conversations between the two men. The holding c e l l had been "bugged," and the Crown had over s i x hours of tapes which included the int e r r o g a t i o n of one accused by the other concerning i n c r i m i n a t i n g things he had t o l d the p o l i c e during a polygraph test and i n subsequent conversations. Most of t h i s conversation was i n C h i l c o t i n , one of the Athabascan languages 60 spoken by the native people of B r i t i s h Columbia. The t r a n s l a t i o n of those tapes i n t o English gave r i s e to a number of challenges i n court. The t r a n s l a t i o n methods were unorthodox. A p o l i c e o f f i c e r who was, l i k e both accuseds, a "native C h i l c o t i n Indian" and was, the judge ruled, f l u e n t i n both C h i l c o t i n and English, spent several months t r a n s l a t i n g the tapes. Though the constable spoke C h i l c o t i n f l u e n t l y , he had not learned to write i t , which caused some delay i n the t r a n s l a t i o n process. In addition, the judge d i d confess to having "some minor reservations" about the o f f i c e r 1 s a b i l i t y to express himself i n English, too. To solve t h i s problem, a missionary working i n the area was brought i n to a s s i s t with the t r a n s l a t i o n . He had l i v e d among the C h i l c o t i n people i n the A l e x i s Creek area of B r i t i s h Columbia f o r 17 years, had had much p r a c t i c a l experience with the language, and had even p a r t i c i p a t e d i n the creation i n a written form of the C h i l c o t i n language. It was admitted, however, that he was d e f i c i e n t i n spoken C h i l c o t i n . The two t r a n s l a t o r s both worked on the task, helping each other i n preparing t h e i r respective t r a n s l a t i o n s . Counsel for the accused Robert Johnny c a l l e d a u n i v e r s i t y l i n g u i s t i c s professor as an expert witness to challenge the t r a n s l a t i o n s . He made a number of c r i t i c i s m s of both. The conversations between the two accused, Professor St.-Jacques pointed out, showed "zero redundancy," which occurs when the speakers "have a great deal of shared knowledge" and can say more with fewer words, other things being equal. The professor t e s t i f i e d that a "'professional t r a n s l a t o r ' would not t r a n s l a t e such a conversation" (pp. 40-41), though on cross-examination he modified h i s p o s i t i o n and said that, though a 61 p r o f e s s i o n a l might t r a n s l a t e i t , he "would q u a l i f y i t with the words ' i t may mean so and so, but I am not sure;" (p.41). The court met t h i s c r i t i c i s m with the observation that judges and j u r i e s face the problem of zero redundancy and shared knowledge every day, since they occur even when t r a n s l a t i o n i s not involved. The court a l s o responded to the alleged defects i n the t r a n s l a t i o n s . The missionary's d e f i c i e n c y i n fluency i n C h i l c o t i n could "be remedied by appreciating that Mr. King r e l i e d upon Special Constable Grant Alphonse to supply word meanings" (p. 40, per Toy, J . ) . The missionary, i t was agreed, also had omitted the swear words. . The magnitude or e f f e c t of t r a n s l a t i o n inaccuracies was an is s u e i n t h i s case, too. It was admitted that the missionary "made c e r t a i n assumptions based on p r i o r knowledge or suppostion" (p. 40), but the court held that t h i s had not r e s u l t e d i n any "substantial inaccuracies" and, i n any event, once the t r a n s l a t i o n was admitted i n t o evidence, the jury could decide for i t s e l f whether the t r a n s l a t i o n should be r e l i e d on. Professor St.-Jacques pointed out that nowhere i n the t r a n s l a t i o n d i d Mr. King, the missionary, i n d i c a t e that he was unsure of what the correct t r a n s l a t i o n should be, nor were any a l t e r n a t i v e t r a n s l a t i o n s o f f e r e d . But these, too, said Toy, J . , were matters for the jury to weigh. Just as the court was prepared to consider that the native constable's knowledge of vocabulary could compensate for the missionary's deficiences i n that area, so, too, the constable's l i m i t e d s y n t a c t i c knowledge of English was not f a t a l because of the missionary's superior knowledge of grammar and syntax both English and C h i l c o t i n which had influenced the constable's t r a n s l a t i o n . 62 A f i n a l point was made by Professor St.-Jacques: S t r i c t l y speaking, these were not, t r a n s l a t i o n s at a l l . In proper t r a n s l a t i o n there would have been three d i s t i n c t steps. F i r s t , the conversations i n C h i l c o t i n would be transcribed, e i t h e r i n phonetic symbols or i n the new C h i l c o t i n alphabet. Then a l i t e r a l t r a n s l a t i o n would have been made. F i n a l l y , there would be a " f u l l - b o d i e d English t r a n s l a t i o n , " as Toy, J . put i t (p. 42). As things stood, the professor noted, there was no way at a l l to check the accuracy of the t r a n s l a t i o n s . These c r i t i c i s m s , however, di d not sway the court. V e r i f i c a t i o n might be desirable, but the f a i l u r e to v e r i f y d i d not make the t r a n s l a t i o n s useless. In a d d i t i o n , the judge was not ready to say that the j o i n t e f f o r t s of the two t r a n s l a t o r s were the work of "incompetents," nor had he been shown that they were inaccurate. The jury could consider these objections, but there was no reason not to admit the t r a n s l a t i o n s i n t o evidence. Comment The dramatic contrast here i s between the range of t r u l y challenging problems acknowledged to e x i s t by both academic experts and experienced p r a c t i t i o n e r s , and the reluctance of the c o u r t s — i f that i s not too strong a t erm—to question the adequacy of t r a n s l a t i o n or i n t e r p r e t a t i o n , either i n the courtroom or regarding evidence of inculpatory statements. Several f a c t o r s were mentioned as a f f e c t i n g the s i t u a t i o n ( i n the view of those who saw problems). It seems that lay persons, i n c l u d i n g judges, are not always aware of the d i f f e r e n c e between being b i l i n g u a l and being an i n t e r p r e t e r or a t r a n s l a t o r . I d e n t i f y i n g inadequacy i n court i n t e r p r e t a t i o n as i t occurs requires being b i l i n g u a l , at a minimum, the respondents stated, and 63 c e r t a i n l y few judges are b i l i n g u a l i n any language other than French. What the interviewees r e f e r to as " i n t u i t i o n , " "sense," or " f e e l " i s not l i k e l y to be a r e l i a b l e measure, and c e r t a i n l y the judge should be f u l l y occupied with attending to the things being said by the p a r t i e s . The accused or the witness i s not i n a very good p o s i t i o n to express any doubts he may have regarding the i n t e r p r e t a t i o n , and since no record i s made, as a ru l e , of the foreign-language utterances, the chance to object ends when the t r i a l ends, for a l l p r a c t i c a l purposes. The interp r e t e r swears to t r a n s l a t e accurately and f a i t h f u l l y , and i s assumed to be doing so u n t i l something a l e r t s the court to the p o s s i b i l i t y that perhaps he i s not. It appears that t r a n s l a t i o n inadequacy i s noticed r e l a t i v e l y o ften by b i l i n g u a l observers, but not by the court. One simple remedy, to be mentioned l a t e r as well, would be to e s t a b l i s h a court observation program wherein b i l i n g u a l s could a s s i s t by being t r a n s l a t i o n watch dogs. The other remedy suggested by the data presented here i s to make a record of both the Engl i s h - and foreign-language utterances, so that any inaccuracies can be found l a t e r . 64 CHAPTER FOUR INTERCULTURAL INTERROGATIONS 65 When an ESL-speaker i s questioned by p o l i c e , we have i n t e r c u l t u r a l i n t e r r o g a t i o n . Then the r i g h t provided i n s. 10(b) a r i s e s , i f the suspect has i n f a c t been arrested or detained. (The jurisprudence on what constitutes "detention" i s much too voluminous to be reviewed here.) The research goal, again, was to assemble a s o c i a l science perspective which could be used along with p r a c t i t i o n e r s ' observations to form a baseline with which l e g a l decisions could be compared, and which could perhaps o f f e r guidelines for further e f f o r t s i n t h i s area. The s o c i a l science l i t e r a t u r e seemed to d i v i d e i t s e l f i n t o two sub-topics, i n t e r c u l t u r a l communication p r i n c i p l e s , and i n t e r r o g a t i o n . The discussion of i n t e r p r e t e r s was presented e a r l i e r i n t h i s report because i n t e r c u l t u r a l i n t e r r o g a t i o n may be performed with the a i d of an i n t e r p r e t e r . In a d d i t i o n , implementing the s. 10(b) r i g h t s p e c i f i c a l l y involves communicating to the suspect that he had the r i g h t to h i r e an attorney immediately, and implies the question of whether the suspect i n fact understands that, for without comprehension, how can he be said to have 'been informed'? The S o c i a l Science Perspective I n t e r c u l t u r a l communication i s a concept which applies at every juncture when we discuss ESL-speakers, by necessary i m p l i c a t i o n . Since the d e s c r i p t o r " i n t e r c u l t u r a l " i s f a r more common than i t s r i v a l terms, " c r o s s - c u l t u r a l " and " i n t e r e t h n i c , " we need to agree that ethnic o r i g i n implies c u l t u r e , since "ethnic o r i g i n " i s what s. 15 s p e c i f i c a l l y names as one of the bases upon which d i s c r i m i n a t i o n must not be based. In addition, we must see that ethnic o r i g i n implies language, since i t i s 66 l i n g u i s t i c d e f i c i t which t r i g g e r s that s. 14 r i g h t , and l i n g u i s t i c communication which i s en t a i l e d i n s. 10(b). The i n t e r c u l t u r a l communication l i t e r a t u r e i s expanding. The most s a t i s f a c t o r y systematic treatment of the f i e l d as a whole seems to be Gudykunst and Kim's textbook, Communicating With Strangers (1984). In addressing terminological issues, the authors point out that concepts such as race and e t h n i c i t y may be confused by people. An ethnic group i s "a a group of people who share a common c u l t u r a l heritage u s u a l l y based on a common na t i o n a l o r i g i n or language" (p. 15; emphasis added). They describe ethnic groups as possessing " d i s t i n c t i v e l i n g u i s t i c , r e l i g i o u s , c u l t u r a l or national c h a r a c t e r i s t i c s " (p. 63; emphasis added). Thus d i s c r i m i n a t i o n based on l i n g u i s t i c or c u l t u r a l d i f f e r e n c e s i n how communication takes place would presumably be covered by s. 15 of the Charter. (In contrast, i n e q u a l i t y which r e s u l t s from i n d i v i d u a l d i f f e r e n c e s , environmental d i f f e r e n c e s , and so on, would be covered by the general provisions of s. 15, since they are not s p e c i f i c a l l y named as being relevant.) B e l i e f s , norms, and values are the three major components that a f f e c t the communication process. Postulates or b e l i e f s r e f e r to the group's "world-view," which includes such commonsense b e l i e f s as those respecting causation i n the universe, the nature of human beings, and so on. These b e l i e f s are treated s p e c i f i c a l l y as commonsensical by the authors: " C u l t u r a l postulates are the things we take for granted as the 'facts of l i f e ' " (p. 59). Among these may be b e l i e f s concerning the r e l a t i o n s h i p between speaking and understanding a language, though the authors do not, of course, discuss t h i s p a r t i c u l a r question. 67 Values r e f e r to the things that members of the cu l t u r e or ethnic group consider good and de s i r a b l e . Some values p e r t a i n to communication events, e.g., the value placed on s e l f - d i s c l o s u r e i n North American cu l t u r e , versus the absence of that value i n other c u l t u r e s . Norms, the t h i r d major component, r e f e r to rules f o r conduct, " s o c i a l l y shared guidelines f o r expectd and accepted behaviors, v i o l a t i o n of which leads to some form of sanction" (p. 53). The implications f o r int e r e t h n i c communication are that problems should be expected: Since norms and rules tend to vary systematically across c u l t u r e s , our behavioral expectations tend to be v i o l a t e d with greater frequency when we communicate with strangers than when we communicate with people who are known (p. 59). More than that, we tend to apply the standards of our own group i n our dealings with a l l others, regardless of c u l t u r a l d i f f e r e n c e s . Thus some strangers are seen as "suspicious" while others are viewed as "brash," and so on. Another c u l t u r a l l y v a r i a b l e factor which influences communication i s the p h y s i c a l environment: The s e t t i n g i n which the communication occurs ... performs the ... function of d e f i n i n g boundaries about how to i n t e r p r e t messages. The same message transmitted i n d i f f e r e n t settings can have two e n t i r e l y d i f f e r e n t meanings (p. 106). The meaning, then, changes with the s e t t i n g . The psychological environment i s another f a c t o r . A l l cultures have methods for producing and re g u l a t i n g privacy (see p. 113). In some cultures, i t i s not pos s i b l e to achieve privacy through c l o s i n g o f f p h y s i c a l areas, as North Americans do. Instead, there e x i s t s a kind of psychological privacy, which allows i n d i v i d u a l s to have the benefits of s o l i t u d e or anonymity without being p h y s i c a l l y separated from others. Actual p h y s i c a l 68 i s o l a t i o n during i n t e r r o g a t i o n or confinement could have d i f f e r e n t e f f e c t s upon members of cultures where such i s o l a t i o n i s rare. Next we may consider c u l t u r a l v a r i a t i o n i n c o g n i t i v e processes i n message decoding. Gudykunst and Kim explain the importance of extra-l i n g u i s t i c cues i n communication: [C]ontextual cues refer to a l l the messages i m p l i c i t i n a communication transaction, i n c l u d i n g the nature of the interpersonal r e l a t i o n s h i p between the communicators, the nonverbal expressions of the communicators, the phys i c a l s e t t i n g , and the s o c i a l circumstances. Verbal messages are viewed as e x p l i c i t l y coded messages that stand out against the background of various contextual cues (p. 120; emphasis i n the o r i g i n a l ) . The extent to which the communication s e t t i n g influences the verbal communication that takes place therein w i l l vary because cultures vary i n the extent to which contextual f a c t o r s d i r e c t l y influence interpersonal communication: [Cjultures that tend to place greater emphasis on s e n s i t i v i t y to and the s i g n i f i c a n c e of subtle contextual cues can be characterized as high-context c u l t u r e s . On the other hand, low-context cultures tend to emphasize spoken or written verbal messages that are e x p l i c i t l y coded (p. 121). Mainstream North Americans, by and large, are low-context communicators, while members of many Asian ethnic groups would a t t r i b u t e more si g n i f i c a n c e to the se t t i n g i n which communication takes place and the cues found t h e r e i n . One more s i g n i f i c a n t communication factor which v a r i e s across ethnic groups i s "interpersonal o r i e n t a t i o n , which r e f e r s to ...the extent to which an i n d i v i d u a l i s dependent on the group and the equilibrium point of optimal balance between dependency and autonomy of i n d i v i d u a l members of a primary group (p. 125). 69 In mainstream North America, of course, i n d i v i d u a l i s m p r e v a i l s , i n contrast to the o r i e n t a t i o n found i n many i f not most other places, such as the t r a d i t i o n a l s o c i e t i e s of Asia and A f r i c a , where we f i n d a greater degree of "submission of i n d i v i d u a l i d e n t i t y , i n d ividualism, and s e l f -expression to the groups to which one belongs" (p. 126). In such cul t u r e s , i n d i v i d u a l a ction i s always considered i n r e l a t i o n to i t s l i k e l y e f f e c t on the welfare of the primary group, which may i t s e l f be much larger than i t s Western counterpart. Along with t h i s f a c t o r , we may consider c u l t u r a l d ifferences i n seeking help. In North American society, i t i s common to r e l y on s p e c i a l i s t s and experts: [ l ] f someone i s experiencing a [ s i c ] serious emotional d i s t r e s s , the person i s encouraged to see a pr o f e s s i o n a l psychologist or counselor i n order to deal with the problem more r a t i o n a l l y . In contrast, help f o r many of the s o c i a l and emotional problems i n high-context cultures i s sought from members of one's family and close friends (p. 130). Presumably, members of some ethnic groups would n a t u r a l l y be more prone than others to a v a i l themselves of the opportunity to r e t a i n a lawyer (who i s not known to them) to a s s i s t them i n time of trouble; and the reverse would hold true for the desire to contact a r e l a t i v e or f r i e n d . Cultures a l s o d i f f e r i n how o r a l communication i s viewed. In the Western t r a d i t i o n , the emphasis i s on the speaker as an i n d i v i d u a l : A primary function of speech i n t h i s t r a d i t i o n i s to express one's ideas and thoughts as c l e a r l y , l o g i c a l l y , and persuasively as possible, so the speaker can be f u l l y recognized f o r h i s or her i n d i v i d u a l i t y i n in f l u e n c i n g others (p. 140). We may compare the Eastern t r a d i t i o n : [R]ather than encouraging the expression of i n d i v i d u a l i t y through the a r t i c u l a t i o n of words, the t r a d i t i o n of Eastern cultures stresses the value of adherence to c u l t u r a l l y defined s o c i a l expectations and r u l e s . The primary emphasis i s placed not on the technique of construction and d e l i v e r i n g verbal 70 messages for maximum persuasiveness but on conformity to the already established s o c i a l r e l a t i o n s h i p s defined by the p o s i t i o n of the i n d i v i d u a l speaker i n the society (p. 141). The tendency, then, might be for a member of an Eastern culture to defer to the a u t h o r i t y and expectations of someone i n a c l e a r l y constituted p o s i t i o n of authority, such as a p o l i c e o f f i c e r . In Asian cultures, less importance i s placed on verbal communication i n the f i r s t place: Unlike Western cultures, which t r a d i t i o n a l l y have placed great f a i t h i n the power of words, the psychocultural o r i e n t a t i o n of Asian c u l t u r e s can be characterized as bordering on a "mistrust" of words (p. 141). One i m p l i c a t i o n i s that Asians w i l l attach l e s s s i g n i f i c a n c e to the speech of others, for the same reason; t h i s may include the s. 10(b) caution. Along with the above we may note the well-known Asian value placed on having minimal disagreement or confrontation i n communication: In general, -Asians tend to be concerned more with the o v e r a l l emotional q u a l i t y of the i n t e r a c t i o n than with the meaning of p a r t i c u l a r words or sentences. Courtesy often takes precedence over t r u t h f u l n e s s, which i s consistent with the c u l t u r a l emphasis on the  maintenance of s o c i a l harmony as the primary function  of speech. This leads Asians to give an agreeable and pleasant answer to a question when a l i t e r a l , f a c t u a l answer might be unpleasant or embarrassing (p. 142; emphasis added). A t h i r d f a c t o r , described as e x i s t i n g i n Thai cul t u r e , as an example, i s that "doubts are r a r e l y v e r b a l i z e d , e s p e c i a l l y when one i s communicating with elders and persons of higher status" (p. 142). These f a c t o r s , p a r t i c u l a r l y i n combination with other c u l t u r a l d i f f e r e n c e s mentioned e a r l i e r , would perhaps lead many Asians to respond a f f i r m a t i v e l y to the investigator's comprehension check following the reading of the s. 10(b) caution, "Do you understand?" It would be 71 contrary to v i r t u a l l y everything i n t h e i r background to say, "Frankly, o f f i c e r , I don't—would you mind repeating that?" It would be naive to assume that that question "means" the same thing to everybody. Having reviewed the basic p r i n c i p l e s of i n t e r c u l t u r a l communication, we can consider the i n t e r r o g a t i o n process i t e s e l f . To represent t h i s area of s o c i a l science i n v e s t i g a t i o n , the researcher chose a p a i r of B r i t i s h sutdies which made use of American data i n a review of the l i t e r a t u r e and supplemented i t with empirical data c o l l e c t e d i n Great B r i t a i n . The f i r s t study (Irving and Hilgdendorf 1980) i s a review of the American l i t e r a t u r e on p o l i c e interrogation, and the second (Irving 1980) i s an attempt to a s c e r t a i n the extent to which the r e a l i t y i n Great B r i t a i n corresponds with that pictured i n the American s o c i a l science l i t e r a t u r e . How much the studies apply to Canada i s not known, of course, but we might assume that they are somewhat relevant. Again, the primary aim i s to present a t y p i c a l example of s o c i a l science thinking on the matter. Irving and Hilgendorf conceive of the suspect being interrogated as "subject to p h y s i c a l , psychological and s o c i a l pressures" (p. 9) that a f f e c t the decisions he must make, and bear on the ce n t r a l issue of the voluntariness of suspects' confessions and t h e i r r e l i a b i l i t y ( t r u t h ) . The background for t h e i r study involves the B r i t i s h Judges' Rules, which s t i p u l a t e that confessions cannot be admitted i n t o evidence unless they were voluntary, i . e . , not made out of fear of prejudice or hope of advantage, and not brought about by "oppression" (see p.11). This i s the s i t u a t i o n i n Canada, too, though the concept of oppression i s a s t r i c t l y B r i t i s h c o n t r i b u t i o n . 72 Reviewing many d i f f e r e n t studies, the authors i d e n t i f i e d persuasion as a key f a c t o r . The l i t e r a t u r e reveals the following f a c t o r s as enhancing persuasion: d i f f e r e n c e i n status; high authority; a c t i v e p a r t i c i p a t i o n of the subject; i s o l a t i o n of the subject from h i s peers; and mild stress such as anxiety or lack of important information needed by the subject i n order to make c e r t a i n v i t a l d e c i s i o n s . They next examined a number of p o l i c e manuals to see whether the recommendations contained therein f i t the s o c i a l science l i t e r a t u r e review they conducted. The f i r s t set of f a c t o r s represents the psychological i n t e r a c t i o n a l aspect. The interrogator should act as i f the suspect's g u i l t i s a foregone conclusion, play down the seriousness of the offense, minimize the consequences of p a r t i a l confession or admitting g u i l t y knowledge, and r e f r a i n from d i s p l a y i n g guns or recording equipment (which might make the suspect too nervous). Second, the interrogators can t r y to manipulate the suspect's understanding of the s o c i a l consequences of confessing or not, e.g., explaining why committing the crime was normal or reasonable and due to understandable pressures, and explaining that confessing i s the honorable and s o c i a l l y acceptable thing while keeping s i l e n t or l y i n g indicates g u i l t (see p. 20). Such attempts might, i n l i n e with the i n t e r c u l t u r a l communcation perspective, be more e f f e c t i v e with members of Eastern c u l t u r e s , i t would seem. Attention i s also paid to the i n t e r r o g a t i o n environment generally, e.g., length of time of questioning, i n t e r v a l s between questioning periods, p r o v i s i o n of food and drink, and custody i t s e l f ; and to the nature of questioning i t s e l f (p. 27). To conceptualize the various 73 f a c t o r s which, together, might c o n s t i t u t e "oppression," the writers group stress studies under three types of cause of st r e s s : p h y s i c a l c h a r a c t e r i s t i c s of the immediate environment, confinement and i s o l a t i o n , and submission to authority. Again, the ethnic factor seems important, on the basis of the i n t e r c u l t u r a l communication viewpoint. The p h y s i c a l environment can be s t r e s s f u l when the suspect i s uncertain about i n t r u s i o n by others, how to get food or f i n d a place or r e s t , or where the t o i l e t f a c i l i t i e s are. There i s a l s o of course the o v e r a l l loss of con t r o l involved i n being i n custody. To some, the int e r r o g a t i o n s i t u a t i o n "may pose a theat of loss of l i b e r t y , a threat of punishment, s o c i a l stigma, or economic threat to family" (p. 32). Confinement and s o c i a l i s o l a t i o n was shown to cause stress i n the s o c i a l science l i t e r a t u r e : Many subjects q u i t the experiments because of the unpleasantness. The t h i r d f a c t o r , submission to authority, c a l l s to mind the f a s c i n a t i n g experiments conducted by Stanley Milgram, the American s o c i a l psychologist, which demonstrated the lengths to which some people w i l l go when they believe the are being subjected to legitimate authority. The obedience f a c t o r ... predisposes the subject to give up the r e s p o n s i b i l i t y for making the d e c i s i o n for himself i n favour of acquiescing to the demands of h i s interrogator (p. 43). Here, i n p a r t i c u l a r , c u l t u r a l d i f f e r n c e s might r e s u l t i n greater o v e r a l l oppression for some i n d i v i d u a l s . The p o l i c e manuals' advice to increase a u t h o r i t y includes: using props such as fake f i l e s and documents; using t h i r d - p a r t y introductions to emphasize the status of the int e r r o g a t o r ; c a l l i n g high-status subjects by t h e i r f i r s t names and being more f o r c e f u l with them; and l i m i t i n g suspects' attempts at f l a t t e r y or i n g r a t i a t i o n (see p. 48). 74 Following up e m p i r i c a l l y , Irving (1980) conducted a p a r t i c i p a n t observation study of p o l i c e i n t e r r o g a t i o n i n Great B r i t a i n . O v e r a l l , the r e s u l t s were confirmatory. The authority of the p o l i c e i s underscored at every turn: Everything which happens to a suspect from the moment he enters the c e l l block r e i n f o r c e s the authority of the p o l i c e . The removal of h i s property and items of c l o t h i n g , body search, the reading of r i g h t s , being assigned a c e l l and locked i n , the rules r e l a t i n g to custody, i n s i s t e n c e on obedience, a l l leave the suspect i n no doubt as to h i s status (p. 134). Irving concluded that the a u t h o r i t y factor was more important than confinement and i s o l a t i o n . Threat of harm was a f a c t o r , too, though not because suspects were a c t u a l l y harmed by the p o l i c e ( i n the cases observed). Psychological t a c t i c s were employed by p o l i c e . For example, where more than one charge could be l a i d , ... the suspect can be l e d to believe, or can simply be allowed to assume, that the l e s s e r charge w i l l ensue i f he i s cooperative, or that the more serious charge w i l l r e s u l t i f he i s not (p. 139). This points up the importance of l i n g u i s t i c comprehension and the need for i n t e r p r e t a t i o n during i n t e r r o g a t i o n . The p o l i c e were subtle i n t h i s regard. They know that ... where the suspect wants to believe that a bargin i s being offered, only the s l i g h t e s t i n d i c a t i o n i s needed to make him c e r t a i n that i t has been o f f e r e d (p. 140). A t a c t i c which would work p a r t i c u l a r l y well with Asians, i t would seem, was to t e l l the suspect that ... unless matters were cleared up s a t i s f a c t o r i l y the p o l i c e would have to request a remand i n custody and t h i s would a f f e c t the suspect's family and friends (p. 139). 75 Another t a c t i c , one which could be e f f e c t i v e with ESL-speakers, i s to t e l l the suspect that a jury i s u n l i k e l y to believe the story he has t o l d p o l i c e — i f the suspect speaks English poorly, and p a r t i c u l a r l y i f he i s unaware of the r i g h t to the assistance of an i n t e r p r e t e r at t r i a l , t h i s may seem quite r e a l i s t i c . It may be s i g n i f i c a n t that, of 16 cases out of 60 i n the study where no i d e n t i f i a b l e t a c t i c s were used by p o l i c e , four involved suspects with inadequate Eng l i s h who were interviewed through an in t e r p r e t e r . The i n t e r p r e t e r may provide protection against p o l i c e t a c t i c s either because the need to tran s l a t e reduced the interrogator's a b i l i t y to manipulate verbal meanings, or because now the suspect i s i n the company of someone who speaks his language, and often i s from h i s own ethno-cultural background. This, though not a part of the int e r p r e t e r ' s o f f i c i a l r o l e - s e t , may amount to a s i g n i f i c a n t , l a t e n t function of i n t e r p r e t a t i o n . O v e r a l l , the t a c t i c s work. Of the 60 suspects i n the sample, 35 made admissions during the interview, and four others d i d l a t e r . Only one suspect refused to answer any questions(see p. 149). Irving concluded that p o l i c e p r a c t i c e i n Great B r i t a i n was i n fac t s i m i l a r to the American experience as reported i n the s o c i a l science l i t e r a t u r e review and the p o l i c e manuals. In Canada, recent f e d e r a l Law Reform Commission dealt with p o l i c e i n t e r r o g a t i o n . The Commission (1984) took the p o s i t i o n that confessions should be admitted i n evidence only i f they were made with "an enlightened understanding of the consequences that may flow from making them." and that voluntariness implies that the suspect "had been apprised of h i s l e g a l jeopardy at the time" (p. 2). The Commission concluded that s p e c i f i c statutory rules governing p o l i c e i n t e r r o g a t i o n 76 were needed. They point out that, i n contrast to the s i t u a t i o n at t r i a l , during i n t e r r o g a t i o n the accused does not even enjoy the presumption of innocence. To the contrary, he i s the subject of i n v e s t i g a t i o n p r e c i s e l y because the p o l i c e believe he i s g u i l t y . The Commission stated t e r s e l y : " i n f a c t , then, i f not i n law, an i n t e r r o g a t i o n i s an i n q u i s i t i o n i n which agents of the state seek the d i s c l o s u r e of evidence" (p. 45 ) . When the p o l i c e o f f i c e r questions a suspect, "an a d v e r s a r i a l process has commenced" (p. 4 7 ) . The interrogator " i s not seeking mere information," but "seeks evidence, and for p r a c t i c a l purposes he i s taking ' i n d i r e c t testimony' (p. 44; emphasis added). The Commission recommended req u i r i n g i n v e s t i g a t o r s to inform the suspect of h i s r i g h t to remain s i l e n t before any questioning begins, or, i f the suspect made a spontaneous confession, as soon as p o s s i b l e a f t e r the confession has been written down. The Commission noted that the Charter does not require t h i s . They argue: As there i s i n f a c t no presumption of innocence where there i s a suspicion of g u i l t , i t seems a self - e v i d e n t propo s i t i o n that a suspect should be apprised of a r i g h t [to s i l e n c e ] that has long been recognized at law. The Commission takes the view that the r i g h t to s i l e n c e of a person suspected or accused of a crime i s as great, i f not greater, as the r i g h t to contact a lawyer (p. 5 7 ) . It may be asked, i n a d d i t i o n , what good i t does to contact a lawyer a f t e r you have confessed out of ignorance to your r i g h t to remain s i l e n t . The Commission o f f e r e d one suggested wording for the recommended warning: You have a r i g h t to remain s i l e n t . Anything you say may be introduced as evidence i n court. If you agree to make a statement or answer questions, you are f r e e to exercise your r i g h t to remain s i l e n t at any time. 77 Before you make a statement or answer any questions, you may contact a lawyer [see section 6]. Whether, t h i s wording would be su i t a b l e for ESL-speakers i s open to question, as i s suggested by; several studies of i n d i v i d u a l s ' comprehension of t h e i r r i g h t s even when they have been informed of them. Briere's (1978) study of ESL-speakers' comprehension of Miranda r i g h t s i n the United States seems to be the only one of i t s type. He became involved i n a case where a foreign student was read h i s r i g h t s , waived them, and then incriminated himself. C a l l e d as an expert witness by the p u b l i c defender, Briere indicated h i s doubt that the Thai student had understood h i s r i g h t s well enough to have waived them. Besides t e s t i n g the student's English a b i l i t y , Briere applied r e a d a b i l i t y formulae to the Miranda warnings, and determined the frequency with which the key words i n the warnings appeared i n everyday language. (Using r e a d a b i l i t y t e s t s with spoken warnings would not overestimate the d i f f i c u l t y of the warnings because d i f f i c u l t reading makes even more d i f f i c u l t l i s t e n i n g , B r i e r e says [see pp. 237-238].) For 50 percent comprehension, the average l e v e l of d i f f i c u l t y i n the warnings was grade 8; for 100 percent comprehension, grade 11.6 (see p. 241). By way of comparison, a Los Angeles County school d i s t r i c t study found that 75 percent of 863 youths between the ages of 14 and 17 surveyed d i d not understand the Miranda r i g h t s when they were read to them by policemen (see p. 242). The r i g h t s are as follows: You have the r i g h t to remain s i l e n t . If you give up the r i g h t to remain s i l e n t , anything you say can and w i l l be used against you i n a court of law. You have a r i g h t to speak to an attorney and to have the attorney present during questioning. If you so d e s i r e and cannot a f f o r d one, an attorney w i l l be appointed for you without charge before questioning. —Do you understand these r i g h t s ? —Do you wish to give up the r i g h t to remain s i l e n t ? 78 —Do you wish to give up the r i g h t to an attorney and to have him present during questioning? (quoted at p. 235). (This f a m i l i a r l i t a n y has been heard by Canadians so o f t e n — o n American t e l e v i s i o n programs—that many believe the r i g h t s to e x i s t i n Canada.) Two of the terms, "attorney" and "questioning," occur only two or three times per m i l l i o n words i n written materials, according to Br i e r e (p. 239). Even many native speakers of English, Briere notes, may not know that "attorney" and "lawyer" are synonymous. There can be no doubt that the equivalent Canadian term used i n the Charter, "counsel," i s even less well known i n Canada than "lawyer." Briere also notes that knowing the meaning of "give 1 and that of "up" does not guarantee knowing the meaning of the phrasal verb "give up." This f a c t would not ne c e s s a r i l y be appreciated by judges, he observes (p. 241). To remedy the problem, Briere proposes rephrasing the Miranda warnings, as follows (see p. 243): —You don't have to t a l k with us and you don't have to answer our questions i f you don't want to. — I f you decide to t a l k with us, anything you say can be used against you. —We can t e l l the judge what you t e l l us. —You can t a l k to a lawyer and you can have a lawyer with you while we ask you questions. — I f you want a lawyer but don't have enough money f o r one, then we w i l l get one for you without charge. —Do you understand what I have said? —Do you want to have a lawyer with you while I t a l k to you? —Do you want to t a l k to me now? 79 B r i e r e seems to f e e l that "don't have to t a l k with us" would carry the same force and reassurance as "have the r i g h t to remain s i l e n t " but a r i g h t to do something may d i f f e r from the mere absence of a l e g a l compulsion to do otherwise. What would B r i e r e say about the s. 10(b) v o c a b u l a r y — " r i g h t , " " r e t a i n , " " i n s t r u c t , " and " c o u n s e l " — a l l of which have other meaning i n everyday l i f e (when they are used at a l l ) ? There i s of course a s p e c i a l i z e d r e g i s t e r c a l l e d "foreigner t a l k " which represents on-the-spot s i m p l i f i c a t i o n of language designed to f a c i l i t a t e communication with non-native speakers of the language (see the summary of i t s c h a r a c t e r i s t i c s i n Hatch 1983, pp. 183-184). However, these modifications are less l i k e l y to be used when the major in t e n t i o n i s not to communicate but merely to speak, and when a set prescribed utterance i s involved, as would be the case with the Charter caution. It i s i r o n i c that the greater ease of p s y c h o l i n g u i s t i c processing that foreigner t a l k i s "designed" to f a c i l i t a t e i s unavailabe i n s i t u a t i o n s where i t i s needed most, such as informing ESL-speakers of t h e i r r i g h t s . One feature of foreigner t a l k that warrants s p e c i a l a t t e n t i o n here i s the greater r e l i a n c e placed on tag questions, e.g., "Your were there, weren't you." Tag questions make i t easier f or the auditor to know what the focus of the question i s , and a l s o o f f e r a model for the proper response to the question. One question which a r i s e s i n t h i s connection i s whether i n some circumstances the tag question may function as a leading question i f the i n t e r l o c u t o r ' s b e l i e f or expectation i s known. The l a s t s o c i a l science study to be considered at length does not deal with ESL-speakers but with juveniles. As such, i t o f f e r s a number of i m p l i c i t comparisons. To place t h i s study i n i t s proper perspective, 80 two e a r l i e r studies of suspects' comprehension of t h e i r Miranda r i g h t s should be mentioned. One observational study of the comprehension of r i g h t s found that the warnings, when given, ... were often intoned i n a manner designed to minimize or negate t h e i r importance and e f f e c t i v e n e s s . Since most suspects had l i t t l e education—and many could not even read—and appeared both i l l - a t - e a s e and dazed by the process, the warning so given seemed to have l i t t l e impact (Wald et a l . 1967, p. 1572). This matter of course i s not dealt with i n the Charter at a l l , nor i s there any mention of i t anywhere i n the case reports. Another perspective on the impact of the r i g h t s within the i n t e r r o g a t i o n a l context i s provided by another observation by the researchers: In the few cases where a suspect showed an i n t e r e s t i n f i n d i n g a lawyer and d i d not already know one, the p o l i c e usually managed to head him o f f simply by not helping him to locate one. Sometimes they refused to advise the suspect whether he should have a lawyer with him during questioning; more often they merely o f f e r e d him a telephone book without further comment, and that was enough to deter him from c a l l i n g  a lawyer (p. 1552; emphasis added.) ESL-speakers might resemble the "inner c i t y " suspects i n t h i s study with regard to l i t e r a c y i n English and, probably, f a m i l i a r i t y with the l e g a l process. Another study conducted around the same time focused on students at a p r e s t i g i o u s u n i v e r s i t y who were being i n v e s t i g a t e d . They d i d not do much bet t e r : In most of the interrogations, the [FBI] agents assumed the offensive from the outset and imposed t h e i r format upon the encounter. They would begin by asking questions, and i n the s o c i a l s i t u a t i o n [of being questioned i n t h e i r homes or o f f i c e s , without an a r r e s t having been made y e t ] , a question demands an  answer (Miranda states l e g a l , not s o c i a l r u l e s ) . The suspect i s thus i n a p o s i t i o n of having to decide whether to answer each question ( G r i f f i t h s and Ayres 1967-68, p. 316; emphasis added). 81 This not only i s i n accord with the p i c t u r e of the coercive nature of i n t e r r o g a t i o n found i n the studies mentioned e a r l i e r , but adds a valuable s o c i o l i n g u i s t i c dimension to the d i s c u s s i o n . The i n v e s t i g a t o r s found that the i n t e r r o g a t i o n process i t s e l f was more coercive than the Miranda warnings were e f f e c t i v e i n helping suspects protect t h e i r r i g h t s : [T]he psychological i n t e r a c t i o n between the interrogator and the suspect i n an i n t e r r o g a t i o n i s extremely subtle, and the interrogator has most of the advantages. Even when we explained the r i g h t to  s i l e n c e and counsel to a group of very b r i g h t and  extremely w i l l f u l people, they f e l t pressed to answer  at l e a s t some of the questions put ot them by the  agents (p. 318; emphasis added). This study suggests that, even with good l i n g u i s t i c comprehension, pr o t e c t i o n of l e g a l r i g h t s i s problematic. What can be expected i n the case of ESL-speakers can be guessed at by s e t t i n g Briere's study alongside that of Grisso (below). Grisso (1981) dis t i n g u i s h e s two components i n competence to waive r i g h t s (a relevant measure of appreciating r i g h t s ) . The f i r s t one he c a l l s "comprehension of r i g h t s , " what the courts t y p i c a l l y c a l l the a b i l i t y to "understand" or "comprehend", or "be cognizant of" one's r i g h t s . Grisso f e e l s that t h i s shows that "courts have not equated the mere f a c t of having been t o l d one's r i g h t s (a procedural matter) with knowing one's r i g h t s " (p. 44). (Is the s. 10(b) r i g h t to "be informed" a procedural matter, or a r i g h t to know?) The second component, " b e l i e f s about l e g a l context," r e f e r s to b e l i e f s about how the r i g h t s a c t u a l l y f unction i n the l e g a l process, and what the consequences of waiving one's r i g h t s might be. He states: It i s one thing, for example, to know that one has a r i g h t to consult a lawyer, and perhaps quite another 82 thing to know what a lawyer does or what the p o t e n t i a l consequences of c a l l i n g for a lawyer might be (p. 44). We should not approach s. 10(b) of the Charter, then, as i f i t were a d i c t a t i o n test-type measure of l i n g u i s t i c comprehension. Grisso used the following i n d i c a t o r s to measure comprehension: a b i l i t y to paraphrase the Miranda warnings, a b i l i t y to define important words i n the warnings, and recognition of other sentences with s i m i l a r meanings (see p. 47). The s i x l e x i c a l items used to test understanding were "consult," "attorney," " i n t e r r o g a t i o n , " "appoint," " e n t i t l e d , " and " r i g h t . " Understanding the r i g h t s i s not enough. For instance, a person can "understand" the r i g h t to remain s i l e n t , but i f he believes that he can be made to t e s t i f y i n court against h i s w i l l , what i s gained by e x e r c i s i n g the r i g h t to s i l e n c e during the investigation? A major aspect of the l e g a l context of waiver of rights i s appr e c i a t i ng the nature of a r i g h t . This involves more than mere knowledge of the everyday sense of the term: [T]he r i g h t to remain s i l e n t should be perceived as an i r r e v o c a b l e protection from s e l f - i n c r i m i n a t i o n . That i s , one should r e a l i z e that the powers of p o l i c e , judges, or other a u t h o r i t i e s do not include the power to l a w f u l l y waive or revoke that r i g h t , to apply coercive pressue on the juvenile to do so, or to demand a response to questioning a f t e r a suspect has l a i d claim to that r i g h t (p. 54). This i s d i r e c t l y relevant for the present study since the s. 20(b) caution uses the term " r i g h t . " Grisso c i t e s a study of childern's d e f i n i t i o n s of a r i g h t i n which ... a frequent response was to confuse a r i g h t with an allowance provided by authority, rather than as a p r i v i l e g e which i s l e g a l l y protected against the whims of authority (Grisso 1981, p. 77, footnote 18). In h i s own data, obtained from t e s t i n g the comprehension of over 400 j u v e n i l e s , " r i g h t " was most often equated with ideas such as "you can do 83 i t " " I t ' s up to you, i f you want to do i t you can do i t , " or "You can do anything i f i t s ' s your r i g h t " (p. 77). On the paraphrase t e s t of comprehension, 55 to 80 percent of the subjects (depending on which of two c r i t e r i a are used) showed d e f i c i e n t understanding of the r i g h t s (p. 73). The r i g h t s were not comprehended equally well. The r i g h t s to s i l e n c e and to an appointed attorney were paraphrased adequately by nearly nine out of ten juv e n i l e s . However, only s l i g h t l y more than h a l f understood the warning that the statement would be used i n court. As for the r i g h t to r e t a i n an attorney before and during interrogation, which corresponds to the s. 10(b) r i g h t i n the Charter, only about 30 percent of the sample undertstood i t adequately, and 44 percent were " c l e a r l y inadequate" i n t h e i r understanding (p. 74). The most common error i n understanding was i n r e l a t i o n to the time and place when an attorney could be used, with many juveniles b e l i e v i n g that the r i g h t pertained to t h e i r court hearing rather than during i n t e r r o g a t i o n . In some cases, t h i s aspect of the r i g h t was not understood even a f t e r the researcher inquired further of the juvenile (pp. 74-75). On the vocabulary comprehension t e s t , nearly two-thirds of the sample had inadequate comprehension of one or more of the items. "Attorney," " e n t i t l e d , " and "appoint" were understood by from 65 to 80 percent of the respondents, but they had less success with the others: "in t e r r o g a t i o n " (37 percent), "consult" (28 percent), and " r i g h t " (27 percent). How many Canadian juveniles can define " r e t a i n , " " i n s t r u c t , " and "counsel," we might ask? It might be assumed that adults would do considerably better. Grisso d i d administer the test to adults. Fewer 84 than one-half could adequately define the word " r i g h t . " While they d i d better than the juveniles, ... the majority described a r i g h t as something one i s allowed to do, and f a i l e d to express a sense of the protectedness of a r i g h t (p. 107). While we do not have comparable data for ESL-speakers, there i s l i t t l e reason to believe that they would do w e l l . We can turn now to the issue of appreciating the l e g a l context i n which the r i g h t s operate. To e s t a b l i s h some standards for what the l e g a l context should be understood to be, Grisso consulted juvenile law lawyers, who were asked to spec i f y what knowledge would be required f o r there to be knowing, i n t e l l i g e n t , and voluntary waiver of r i g h t s by a ju v e n i l e . They agreed on three areas (see p. I l l ) : 1. The suspect should understand that the p o l i c e , i n t h e i r r o l e as i n t e r r o g a t o r s , are i n an adversarial p o s i t i o n and are attempting to discover the degree of the suspect's involvement i n a law v i o l a t i o n . 2. The suspect should perceive a defense attorney as an advocate, s k i l l e d i n law, whose function i s to provide l e g a l advice and guidance i n the i n t e r e s t and defense of the suspect. 3. The r i g h t to s i l e n c e should be perceived as a p r i v i l e g e : that i s , as an entitlement which should not and cannot l e g a l l y be v i o l a t e d or revoked by authority. A v a r i e t y of misconceptions held by juveniles were discovered. Some thought that the lawyer himself played a part i n deciding g u i l t or innocence, and punishment. Others believed that lawyers would not represent juveniles who admitted that they had committed the v i o l a t i o n . Most of the inadequate responses involved the b e l i e f that lawyers were required to t e l l the court about any evidence suggesting that the juvenile had committed the offense. About one-third of the juveniles i n 85 the sample who had not had p r i o r experience i n serious court proceedings understood the lawyer's r o l e wrongly: While the p o t e n t i a l f o r defense and h e l p f u l advocacy i s generally understood, they see t h i s as av a i l a b l e p r i m a r i l y to the juvenile who i s being wrongly "accused" by the court; i f the juvenile i s being r i g h t l y "accused," they b e l i e v e that the lawyer's r o l e i s to a s s i s t the court i n d i s p o s i t i o n of the case (p. 120). This may r e f l e c t some aspects of the juvenile j u s t i c e system which the respondents had heard about from others. It also r a i s e s the issue of what b e l i e f s foreign-born ESL-speakers bring with them to Canada. Another p o t e n t i a l problem f o r ESL-speakers from c i v i l law j u s r i s d i c t i o n s , where the judge takes a much more " i n q u i s i t o r i a l " r o l e i n the proceedings, i s suggested by the f i n d i n g i n Grisso's study that juveniles held other b e l i e f s which would cancel out the Miranda r i g h t s . For instance, most subjects thought that, the r i g h t to s i l e n c e notwithstanding the judge could force them to reveal that they knew i n court. Here are some b e l i e f s ( i n Grisso's words) held by ju v e n i l e s : [T]he judge makes the law and has the power to assess penalties against those who do not comply with i t . [T]he sole purpose of a court hearing was to obtain a juvenile's confession, f o r which reason a s s e r t i n g the r i g h t to s i l e n c e i n court would be l e g a l l y disallowed. [R]efusal to t a l k about one's, i l l e g a l involvements when questioned by a judge would amount to perjury. As one juvenile put i t , " I f I'm i n court, I have to t e l l the t r u t h , the whole tru t h , and nothing but the t r u t h . So when the judge asked you what you done, you got to t e l l him even i f you don't want to" (p. 1224). Grisso notes that three-quarters of the adults surveyed a l s o believed that the r i g h t to si l e n c e could be taken away by a judge. One of Grisso's observations would seem to have s p e c i a l relevance for foreign-born ESL-speakers i n Canada. The interviews showed that 86 many juveniles believed that they would receive more lenien t treatment i f they confessed, even though they knew there could be undersirable consequences as w e l l . In general, Grisso concluded, "dependent or frightened youths, or ... youths who f e e l g u i l t " would be more l i k e l y to choose confession, as a means of getting leniencey(p. 158). The r i s k i e r strategy of denying the accusation might be more a t t r a c t i v e to more experienced youths when the offense was a serious one, due to the greater consequences involved i n confessing (p. 159). For most of the juveniles, the main consideration was that of avoiding detention (at that time); a s s e r t i n g t h e i r r i g h t s was seen as removing the p o s s i b l i t y of going home to t h e i r f a m i l i e s that night (p. 159). It would seem that t h i s would a f f e c t ESL-speakers from c e r t a i n ethnic groups more than i t would a f f e c t others. Grisso does not see l i n g u i s t i c s i m p l i f i c a t i o n of the Miranda warnings as o f f e r i n g much hope of ameliorating the s i t u a t i o n (p. 197). He c i t e s a research study which f a i l e d to demonstrate increased understanding r e s u l t i n g from s i m p l i f i c a t i o n . Further, the s i g n i f i c a n c e and the function of r i g h t s a l s o need to be understood. Juveniles need to know about ... the nature of a l e g a l r i g h t , the l e g a l l y allowable response of p o l i c e and court personnel to an a s s e r t i o n of that r i g h t , the various p o t e n t i a l consequences of r i g h t s waiver, the nature of an at t o r n e y - c l i e n t r e l a t i o n s h i p , and the ways i n which an attorney works for a c l i e n t (p. 197). In dealing with m u l t i c u l t u r a l populations, i t might a l s o be necessary to explain that any i n d i v i d u a l can—and i s expected t o — r e t a i n the services of a lawyer on h i s own. Grisso does recommend "extraordinary protections" f o r juveniles aged 15 and under, such as blanket exclusion of t h e i r confessions, or 87 mandatory l e g a l counsel, since h i s data indicated that t h i s group needs extra assistance i f t h e i r r i g h t s are to be protected. Grisso favors a rebuttable presumption that younger juveniles who d i d not have competent l e g a l counsel and advocacy at the time of int e r r o g a t i o n were incompetent to waive t h e i r r i g h t s . For s i m i l a r reasons, ESL-speakers could be treated i n the same manner, i t would seem. The biggest obstacle would be the present lack of empirical data showing that such a need e x i s t s . In t h i s sense, the understanding of juveniles' needs i n the United States can be said to be advanced beyond our understanding of ESL-speakers' needs i n Canada. P r a c t i t i o n e r s ' Views One fa c t o r which arose r e l a t i v e l y often i n the interviews with practioners was what they saw as foreign-born i n d i v i d u a l s ' lack of f a m i l i a r i t y with the Canadian type of j u s t i c e system. Many foreigners are from countries where there i s no l e g a l presumption of innocence, and th i s may gr e a t l y a f f e c t t h e i r behavior when they come in t o contact with the law. One court i n t e r p r e t e r f a m i l i a r with the l e g a l system i n France explained that there, once arrested, the i n d i v i d u a l would remain i n j a i l u n t i l the case was heard, and would not be able to p a r t i c i p a t e i n the preparation of a defense. "Once they end up ... i n t h i s s i t u a t i o n , " she explained,, "that automatically means the end of i t u n t i l they're i n court and somebody e l s e decides t h e i r f a t e . " This type of expectation could a f f e c t the i n d i v i d u a l ' s making an e f f o r t to contact a lawyer during the i n v e s t i g a t i v e stage, when the need for l e g a l advice might be most c r i t i c a l . 88 One of the b i l i n g u a l lawyers pointed out that i t i s very d i f f i c u l t f o r i n d i v i d u a l s from some backgrounds to understand that they w i l l have to go through a hearing as part of the immigration/deportation process but nevertheless they are considered innocent u n t i l the government can prove otherwise. It i s d i f f i c u l t for t h i s lawyer to convey to them ... the notion that the only way they can f r y themselves i s by f r y i n g themselves, because t h i s i s a very d i f f i c u l t charge to prove, and i t ' s only going to be out of your own mouth that you're going to get had Often the government lacks one c r u c i a l element i n i t s case, but the c l i e n t s think t h e i r only hope i s to ta l k t h e i r way out of the s i t u a t i o n . They may inadvertently provide the government with the information i t needs i n t r y i n g to show "that they're nice guys." Because of t h e i r background, they do not understand that, as the lawyer put i t , "even i f you d i d i t , you're innocent u n t i l proved g u i l t y . " Consequently, i t i s d i f f i c u l t to get such i n d i v i d u a l s to be quiet and only answer the questions that are asked. The immigration adjudicator was also aware of a r e l a t i o n s h i p between e t h n i c i t y and at t i t u d e s toward the j u s t i c e system. For some people, i t might not be uncommon i n t h e i r country of o r i g i n "to be thrown i n j a i l and l e f t there for weeks." If they expect that deportation i s (already) a ce r t a i n t y , they may not appreciate that anything they say to an imigration o f f i c e r conducting an i n v e s t i g a t i o n "may well then be t r o t t e d out at t h e i r i n q u i r y , " and may of course be the very thing that brings about that deportation. They do r e a l i z e that " i t ' s not l i k e a coffee k l a t s c h conversation with your buddy, Joe, at the l o c a l restaurant," the adjudicator continued, but they do not r e a l i z e that they are helping the investigator construct a case against 89 them. In f a c t , the adjudicator observed, at that stage they do not even know there i s such a thing as an inquiry, or that they may be the subject of an i n q u i r y as part of the o v e r a l l deportation process. The tendency to give a f f i r m a t i v e answers to p o l i c e i n v e s t i g a t o r s and others i n a u t h o r i t y was known to the respondents. An immigrant services worker o f f e r e d two d i f f e r e n t reasons why a South Asian might do so: One, deference, and not wanting to make waves. Wanting to impress the policeman ... that, look, r i g h t from the beginning you are cooperation ... and ... simply because you don't want to show the person that you ... do not speak English, also because ... i f the p o l i c e o f f i c e r thinks that you don't speak En g l i s h , he might perhaps get away with something, you know, i f there's t h i s f e e l i n g that there's going to be d i s c r i m i n a t i o n , r i g h t o f f the bat when your're faced by a p o l i c e o f f i c e r , then you want to show them that you do know English, even though you might not. This type of a t t i u d e toward p o l i c e was mentioned as well by a b i l i n g u a l lawyer. People who come from the v i l l a g e s of Punjab, i n northern India, are r e a l l y q uite intimidated by p o l i c e . As a consequence, ... they f e e l that they have to answer every question that's being asked of them, and they give a l l of the answers, true or f a l s e , but they t r y and give an answer to each and every question. In an i n v e s t i g a t i o n , he continued, communication would be a f f e c t e d by what he termed a c u l t u r a l "rule of expediency," v i z . , "you say what the other person wants to hear." This might be more pronounced i n Punjabi c u l t u r e : Because "the p o l i c e o f f i c e r s commit a l l kinds of i n f r a c t i o n s i n terms of t h e i r own behvior ... the ordinary i n d i v i d u a l on the street simply gives you what you want to hear as a p o l i c e o f f i c e r . " The important thing i n such a confrontation i s "to please the policeman. And to get away at l e a s t for that moment." This general tendency was 90 noted as well by a Southeast Asian immigrant services worker. People from her c u l t u r e ... don't l i k e to lose face, so they w i l l just say yes, to show that they d i d understand, because they want to show the others, they don't want to look stupid. The county court judge added that the i n d i v i d u a l might i n d i c a t e that he understood " i n order to be cooperative and i n order to be a nice person, i n order to i n g r a t i a t e himself to the p o l i c e o f f i c e r . " Culture may also play a r o l e i n the exercise of the s. 10(b) r i g h t . One b i l i n g u a l lawyer observed that most members of the South Asian community would not know the names of more than one or two lawyers. In addition, as the other b i l i n g u a l lawyer pointed out, i t was infrequent that an i n t e r p r e t e r was a v a i l a b v l e to a s s i s t non-English-speakers i n telephoning a lawyer, and that i t was very d i f f i c u l t for an ESL-speaker to i n i t i a t e contact with a lawyer on h i s own. In most instances, success i n r e t a i n i n g counsel had required the assistance of the a u t h o r i t i e s : In other words, they've done something to earn the sympathy of the p o l i c e , the j a i l e r , the immigration o f f i c e r , who says, "Look, get ahold of MOSAIC [a community t r a n s l a t i o n s e r v i c e ] , " or, " C a l l X, who speaks [your language]," or, "I think you need a s o c i a l worker." The majority of t h i s lawyer's r e f e r r a l s i n emergency s i t u a t i o n s were the r e s u l t of someone at the j a i l having found the suspect a psychologist or s o c i a l worker who spoke h i s language, or even haying simply given the suspect t h i s p a r t i c u l a r lawyer's name. He continued: So to the degree that they're getting help from somebody i n t h e i r language, i t i s n ' t because they know how to use the yellow pages or because the yellow pages ... advertise l o t s of people who can help them. It's because the a u t h o r i t i e s were nice enough to put 91 them i n touch with somebody who put them i n touch with somebody e l s e . T r u t h f u l l y . That's my experience. Other, r e l a t e d factors he mentioned included the fa c t that the idea of being able to f i n d a lawyer i n the middle of the night, on your own, was a p a r t i c u l a r y American—not even Canadian—notion. In Vancouver, he observed, None of the law firms keep answering services or 24-hour numbers or something, so the idea that you can drag your lawyer out of bed to give you advice about whether to blow [ i . e . , provide a breath sample] or not r e a l l y comes to us v i a t e l e v i s i o n more than out of being taught i n school that you can do that. He added that knowing how to choose the corr e c t type of lawyer i s another problem for foreigners. The u n f a m i l i a r i t y with the phenomenon of l e g a l a i d i s another, as an immigrant services worker observed. Refugees, such as the worker her s e l f was, simply do not know how to c a l l a lawyer. I n i t i a t i n g a c t i o n on your own i s also a c u l t u r a l l y v a r i a b l e kind of a c t i o n . A c r o s s - c u l t u r a l t r a i n e r stated that i t would not be normal for members of some ethnic groups to t r y to r e t a i n a lawyer on t h e i r own, independently: [T]hey would have a tendehcey to check back with t h e i r • family before they d i d anything else, p a r t i c u l a r l y the person i n authority within the family ... before making any other moves. One of the b i l i n g u a l lawyers commented on the extended family system that characterizes some Canadian ethnic groups. These f a m i l i e s involve complex r e c i p r o c a l s o c i a l r e l a t i o n s h i p s , and one r e s u l t , he said, i s that ... you probably won't have the self-confidence or the know-how or i n f a c t the i n c l i n a t i o n to phone up the lawyer immediately, a lawyer of your own choice. You want want to, by nature ... t a l k to your f r i e n d s or r e l a t i v e s , brothers or s i s t e r s , before you do that. 92 Most members of such ethnic groups "probably w i l l not have the courage to phone up a lawyer ... and say, 'Hey, I am at the courthouse here and I'm i n the p o l i c e c e l l . I want your help.'" This lawyer stated that t y p i c a l l y he i s contacted at night by r e l a t i v e s and f r i e n d s , who report that such-and-such i s i n j a i l and would l i k e to be represented by the lawyer. I t would be much less common to be retained by the person i n custody. Before addressing the c e n t r a l issue of whether i n fact the ESL-speaker does understand the s. 10(b) caution a f t e r i t has been r e c i t e d to him i n the statutory language, we may note what one of the b i l i n g u a l lawyers said about the use of yes/no questions. He was the only person interviewed to mention t h i s f a c t o r , but h i s observations seem very well considered. In h i s experience, i n t e r r o g a t o r s favored yes/no questions i n dealing with ESL-speakers i n order to increase the l i k e l i h o o d that an understandable answer would be forthcoming (the foreigner t a l k r a t i o n l e , apparently). When queried by the researcher, he agreed that such a p r a c t i c e leads ESL-speakers into responding to questions or poropositions which they understand only imperfectly, whereas t h e i r lack of comprehension would be more apparent i f open-ended questions were used. In f a c t , he added that "that's why those questions are asked." By t h i s he meant that such questioning "makes a person f a r more passive." The investigator i s i n the process of course of b u i l d i n g up a body of evidence against the suspect: Then you can say, "He said he d i d t h i s , " or, "He said he d i d that." Somethings they ask open-ended questions and t r y and get the guy to hang himself, so I guess that's the other dangerous end of i t . 93 It was h i s opinion that most people being interviewed were not i n f a c t t r y i n g to block communication; they do want to communicate and are t r y i n g to get t h e i r point across. However, i n that s i t u a t i o n , he said, ... i t ' s easier for them to go along with the yes/no than to say, "Stop, I don't understand that," or, "Hang on, there's more than two a l t e r n a t i v e s , " and take control of the interview themselves. The lawyer q u a l i f i e d h i s remarks by adding that he had on occasion observed c l i e n t s ask for c l a r i f i c a t i o n , but noted as well that "they a l s o launch i n t o an attempt at responding "way before they r e a l l y know what the h e l l ' s going on." Pure l i n g u i s t i c comprehension by i t s e l f i s a formidable problem, even without the possible coercive e f f e c t of forced-choice questions. One of the b i l i n g u a l lawyers estimated that 79 or 80 percent of the i n d i v i d u a l s from h i s ethnic group l i v i n g i n Vancouver would not understand the s. 10(b) r i g h t and the r i g h t to silence, and i f t h i s were t o l d to them i n a non-threatening way, "you would f i n d over ninety percent of the people won't make any statements to the p o l i c e . " He thought that the manner i n which the caution i s deli v e r e d would be e s p e c i a l l y important to ESL-speakers. (This might be because they would have to pay comparatively more a t t e n t i o n to p a r a l i n g u i s t i c and other nonverbal aspects of the communication.) Other respondents said much the same thing. An immigrant services worker complained about the statutory language used i n the caution: It didn't say, "Do you want a lawyer?" It said, "Do you need counsel?" How can you understand? I couldn't even understand what "counsel" means. I said, "What's counsel? Advice?" Is i t advice, you know? It required many experiences i n court before she herself appreciated that the warning referred to h i r i n g a lawyer. In Vietnamese, she 94 explained, the equivalent term for "counsel" i s not "lawyer," which r a i s e s the p o s s i b i l i t y that the very wording of the statute i t s e l f d iscriminates against some people. She added that the i n d i v i d u a l ' s emotional state at the time could a f f e c t h i s comprehension. The people she knew about had been t e r r i b l y frightened: [W]hen the policeman read that, they didn't understand one b i t of what the policeman s a i d . They're just scared, they're out of t h e i r wits. They just said to themselves, "Oh, my God, I'm thrown i n j a i l . " She mentioned a case of a woman accused of s h o p l i f t i n g who c r i e d and c r i e d : She said, "Please, don't throw me i n j a i l , " and she would r i g h t away confess, you know ... and the policeman of course w i l l write down whatever she said .... They're too scared, they don't understand anything. Usually that's what happens. So only ... i f you t e l l them t h e i r r i g h t s properly, you know, maybe they won't say anything. One more perspective on the reading of the s. 10(b) r i g h t was provided by the county court judge, who mentioned the "Breathalyzer demand," which might be given i n the same s i t u a t i o n . He said of the demand: [T]he very wording i s i n such legalese that you surely cannot expect a person those f i r s t language i s not English to comprehend that .... I don't think a p o l i c e o f f i c e r i s r e a l l y discharging h i s duty i f he simply reads from the card, because the card's got a l o t of pr e t t y formal language i n i t . In f a c t , the wording come d i r e c t l y from the Criminal Code: I have reasonable and probable grounds to believe that you are committing, or within the preceding two hours have committed, an offence under section 234 or 236 of the Criminal Code. I hereby demand that you provide now, or as soon as p r a c t i c a b l e , such samples of your breath as are necessary to enable a proper analysis to be made to determine the proportion, i f any, of alcohol i n your blood and to accompany me for the purpose of enabling such samples to be taken. 95 Refusal to provide the breath sample without a good excuse i s i t s e l f a crime, and the judge noted that p o l i c e o f f i c e r s do tend to explain the meaning of the demand to suspects i n simpler language. At the same time, he, too, emphasized the r o l e of the suspects's emotional state i n comprehending: "There's a r e a l danger that you don't understand because of t h i s very oppressive environment that you're now being put i n t o It i s important, then, i n safeguarding r i g h t s , to see to i t that the benefits and protections intended are a c t u a l l y d e l i v e r e d . The views of p r a c t i t i o n e r s surveyed above suggest that we should not assume that t h i s w i l l happen automatically. The Legal Perspective In the law reports, there i s v i r t u a l l y no mention of c u l t u r a l l y v a r i a b l e factors that could influence the communication process during i n v e s t i g a t i o n . A number of cases (not reviewed here) have suggested that the r i g h t to r e t a i n counsel must be exercised by the suspect i n the form of an actual attempt to contact counsel. That i s , the r i g h t may be held not to have been denied i f a telephone and a telephone book were a v a i l a b l e . As an i l l u s t r a t i o n , i n R. v. Smith (1984) i t was held that a "shrug" by the suspect was a waiver of the r i g h t to r e t a i n and i n s t r u c t counsel. The summary report states: The actions of the accused amounted to a f a i l u r e to take further advantage of the opportunity afforded. In essence her actions amounted to a waiver of continuing to exercise her r i g h t . This approach might be unfair to ESL-speakers i f , due to t h i e r ethnic o r i g i n , i t would not be natural for them to be so i n s i s t e n t i n dealing with p o l i c e . 96 A major issue i s whether the exact language of the Charter d e c i s i o n which i s c i t e d with some frequency i s R. v. Nelson (1982), a case decided by the Manitoba Queen's Bench. The suspect, charged with murder, had been t o l d while i n the p o l i c e s t a t i o n that he could " c a l l a lawyer to i n s t r u c t and recieve advice from." Asked, "Do you understand t h i s ? " , he r e p l i e d , "Yup, yup." The p o l i c e then proceeded to interrogate him, obtaining answers to over 60 questions. The accused was never read his r i g h t s i n the s p e c i f i c language of the Charter. S c o l l i n , J . f e l t that the language of the statute i t s e l f should be used: If the unsophisticated accused i s to be confused, i t i s better that he be confused about what the Constitution states rather than confused about what the p o l i c e say the C o n s t i t u t i o n states (p. 92; emphasis i n the o r i g i n a l ) . He went on to"note that i n the ins t a n t case, the p o l i c e were dealing with an i n d i v i d u a l ... whose mental condition should at least have r a i s e d a query as to the f u l l extent of h i s understanding and reasoning power as d i s t i n c t from the r e l a t i v e l y more simple a b i l i t y to narrate (p. 92). Despite t h i s recognition of v a r i a b i l i t y i n comprehension, the court d i d not explain p r e c i s e l y how the Charter language was superior i n terms of accomplishing the communicative gaol On the other hand, S c o l l i n , J . d i d allow that " [ f ] o r some accused an elaboration of how that r i g h t works might be necessary i f requested" (p. 92; emphasis added). However, on the whole the court favored the statutory language: [ l ] t i n v i t e s d i f f i c u l t y from the outset i f the accused i s not upon h i s a r r e s t informed as soon as p r a c t i c a b l e i n exactly the terms enacted, that i s : "You have the r i g h t to r e t a i n and i n s t r u c t counsel without delay" (p. 92). Thus the suspect himself would have to decide that h i s understanding was d e f i c i e n t before he could get a t r a n s l a t i o n into simpler English from 97 his i n t e r r o g a t o r . How the o f f i c e r might go about explaining "how that r i g h t works' was not discussed i n the report, e i t h e r . Later cases displayed a more r e s u l t s - o r i e n t e d view of how the r i g h t s should be communicated. In R. v. Shields (1983), the accused had said that he had understood h i s r i g h t s , and l a t e r signed a confession. At t r i a l , he explained that he had not known any lawyers at the time and had not known that free l e g a l assistance might be a v a i l a b l e . He had never heard the term "duty counsel" ( i . e . , l e g a l a i d ) , and the p o l i c e d i d not t e l l him how he could contact a lawyer. The judge held that the accused had i n f a c t been informed of h i s r i g h t s , and i n a timely manner, but he was of the opinion that "mere r e p e t i t i o n of the words" of the Charter followed by asking the accused i f he understands i s not enough. In t h i s case, when i t became clear to the o f f i c e r s that the accused d i d not know how to exercise h i s r i g h t , ... the p o l i c e should have advised him of how he could contact a lawyer and should have informed him that i f had could not a f f o r d to to r e t a i n and i n s t r u c t counsel then l e g a l a i d was a v a i l a b l e (p. 201, per Borins, Co.Ct.J.). The court f e l t that the accused's r i g h t s should be explaind to him " i n e a s i l y understood language." Another suggestion offered by the court was that the r i g h t s should be written out i f possible, as should any waiver of the r i g h t s . (Does t h i s discriminate against members of cultures with no written languge? Against i l l i t e r a t e Canadians?) Most of the comprehension questions decided by the courts have involved drunkenness rather thatn second-language issues. One reason for t h i s may be that the Breathalyzer demand i s even more d i f f i c u l t to understand than the s. 10(b) warning. R. v. Rudd (1983) o f f e r s a straightforward example of how the court can proceed when comprehension 98 i s considered important. The court there concluded that the a r r e s t i n g o f f i c e r "did not i n s t r u c t the defendant i n a s u f f i c i e n t l y c l e a r way to enable the defendant to understand what he was to do" (p. 221). This holding i s important because i t says that there i s more than one way to explain a l e g a l matter to a suspect, and the suspect's a c t u a l comprehension i s the c r i t e r i o n of adequacy i n communicating the matter to him. As a l e g a l question, we may ask whether being informed of the s. 10(b) r i g h t s should be judges by the same standard used i n the drunk d r i v i n g cases. For a look at how the court may t r y to resolve discrepancies i n the evidence, we may turn to R. v. Croke (1983), where a deaf-mute, the t r i a l judge found, had not understood the demand to provide a breath sample. On appeal, the comprehension issue was discussed, and the f a c t u a l f i n d i n g made by the t r i a l judge was overturned. The appeal court noted that the accused could have t o l d the i n t e r p r e t e r present at the time that he d i d not understand. Here, the statutory langauge of course could not be used. The i n t e r p r e t e r t e s t i f i e d at t r i a l that her explanation of the demand had included a l o t of "show-tell," and for much of the explanation, she added, the accused "could a c t u a l l y see what was happening" (p. 209) . This departure from the statutory language posed no problem for the appellate court, nor d i d the f a c t that the i n t e r p r e t e r admitted that she had had d i f f i c u l t y i n explaining the t e c h n i c a l terms "chemical" and "analysis" and had had to s u b s t i t u t e simpler wourd, which she said she thought the accused had understoood. Other courts have been more i n s i s t e n t that a c t u a l comprehension be proved. In R. v. Richardson (1984), for instance, the court held that the words "without delay" i n the s. 10(b) caution need not be used as 99 long as the accused understands the meaning. An o f t e n - c i t e d d e c i s i o n from Prince Edward Island, R. v. Ahearn (1983), used the comprehension of the suspect as the ultimate test when i t was argued that the accused had been informed of h i s r i g h t s because there was a sign posted on the p o l i c e s t a t i o n w a l l . In informing someone of h i s r i g h t s , the court explained, "the important object i s to so inform him and to make c e r t a i n that he understands the matter being communicated to him" (p. 196, per MacDonald, J . , for the court; emphasis added). As a question of f a c t , i n t h i s case, the court found that the accused had been informed of h i s r i g h t s by the sign (p. 196). An opposing "sign case" i s Lussa v. The Health Science Centre and Director of P s y c h i a t r i c Services (1983), where Kroft, J . was not s a t i s f i e d that the posting of a sign was s u f f i c i e n t to inform someone of h i s Charter r i g h t to have the v a l i d i t y of h i s detention determined by way of a hearing. Another i n s i g h t i n t o the i n t e r r o g a t i o n p r o c e s s — n o t i n v o l v i n g the s. 10(b) r i g h t — i s provided by R. v. Stewart (1972), a B r i t i s h case which could be brought to bear on the Charter issues by way of analogy. This was a arson case, and the accused had a mental age of 5 or 6 years, and the language a b i l i t y of a 3-year-old. On the v o i r d i r e , where his confessions' a d m i s s i b l i t y was i n issue, a physician t e s t i f i e d regarding the accused's comprehension and responses to questions during i n t e r r o g a t i o n : [T]he answers to the questions would be determined by the form of the question with a tendency either to answer: "Yes," or to give the answer which the defendant thought the questioner wanted. "He might well answer a question only parts of which he had understood although the answer might suggest that he was answering the question as a whole." "She [the physician] gave an example of t h i s . She sa i d : " I f you ask the question: 'Where d i d you s t a r t the f i r e ? ' the defendant would get the words 'where' and ' f i r e ' and, 100 therefore, would take you to where the f i r e started, but" she said, "that would not be an i n d i c a t i o n that he had started the f i r e because he would not f u l l y have understood the question" (p. 279). In t h i s case, where there was a f a i r l y c l e a r l y defined pattern of l i n g u i s t i c d e f i c i t , the confessions were excluded. ESL-speakers might have some of the very same types of comprehension problems, yet i n the cases we see no comparable discussions of these•issues. Some cases have held that the Crown need not prove comprehension of the breath sample demand or Charter warning anyway. In R. v. McLellan (1983), which i s only b r i e f l y reported, i t i s stated that the Crown need not prove beyond a reasonable doubt that the accused was informed of h i s Charter r i g h t s — i n s t e a d , he must prove that he was not informed. S i m i l a r l y , R. v. Bauditz (1981) held that the Crown "has understood and comprehended i t . " In the Lussa case (above), the court implied that some evidence of comprehension must be presented however: Because I have been given no evidence either as to her capacity or i n c a p a c i t y to understand, I have nothing that s a t i s f i e s me that s. 10 has been compiled with (p. 254). R. v. Simon (1984) a l s o held that the Crown must e s t a b l i s h that the accused understood the warning, as d i d R. v. Simon (1984). On the other hand, R. v. Saulnier (No. 2) (1980) held that the t r i a l judge should not have assumed that the accused d i d not understand English merely because he had spoken to the a r r e s t i n g o f f i c e r i n French. What should the i n v e s t i g a t i n g o f f i c e r do? In R. v. Lundigan (1984) the b r i e f report states: "Police o f f i c e r s do not have a duty to a s c e r t a i n with any p r e c i s i o n i f an accused completely understands h i s r i g h t s . " In Nelson (see above), however, the court made recommendations for determining, and recording, the suspects's resonse to the warning. 101 And i n R. v. Shields (above) the court advised'that the r i g h t s should be explained i n w r i t i n g "to make c e r t a i n that he understands h i s r i g h t s " (p. 201). The courts are not unwilling to recognize that some circumstances do create something l i k e a duty on the part of p o l i c e to take s p e c i a l steps to determine that the suspect understood the warning or demand. In R. v. Schmidt (1984) i t was held that i f something i n the circumstances suggests that an accused does not understand, the p o l i c e o f f i c e r may have to go further and see that the r i g h t s are explained. Cases of t h i s general type include Nelson, where the suspect was an "unsophisticated accused"; Lussa, where the applicant was a person of "questionable mental capacity"; and R. v. Michael Johnny (1984), where the defendant was "handicapped to the extent that he could not communicate beyond the l e v e l of a seven-year-old c h i l d . " In t h i s l a s t case, Wood, J . commented that " i t was obvious to the p o l i c e that the accused had a major d i s a b i l i t y which made communication with him at best a r i s k y p r o p o s i t i o n " (p. 53). The court spoke of a "languge handicap" i n R. v. Bento (1983). The accused was too drunk to understand the Breathalyzer demand i n R. v. Peters (1978), a pre-Charter case. In R. v. Po t t i e (1980), the appellate court held that the accused, who had just been i n an accident p r i o r to the breath sample demand, was agitated and i n a state of shock, and so d i d not properly understand the demand. In R. v. E v a l t a l i g a k (1984), the accused was a nervous, unsophisticated person, and had not understood the warning for that reason. If the p o l i c e do have a duty to a s c e r t a i n comprehension, then "incapacity" of some sort seems to t r i g g e r i t . For example, i n R. v. Yensen (1961), McRuer, C.J.G.C. di d not think that an accused with the 102 verbal a b i l i t y of an eight-year-old understood the meaning of the (pfe-Charter) caution, c a l l i n g the mere reading of the caution "an empty performance." He made these suggestions: I do not think i t i s s u f f i c i e n t to ask a c h i l d i f he understands the caution. I think the o f f i c e r must be i n a p o s i t i o n when he comes in t o Court, to demonstrate to the Court that the c h i l d d i d understand the caution as a r e s u l t of c a r e f u l explanation and p o i n t i n g out to the c h i l d the consequences that may flow from making the statement (p. 322). C e r t a i n l y t h i s p r i n c i p l e could be applied to ESL-speakers. The suspect's accent would always be immediate evidence that he might be s u f f e r i n g from something l e g a l l y s i m i l a r to a 'language handicap.' The courts have been reasonably c a r e f u l i n safeguarding the r i g h t s of suspects with o r g a n i c a l l y demonstrable ret a r d a t i o n , and they could conceivably take the same a t t i t u d e toward ESL-speaders, given the r i g h t frame of mind. We can consider two cases which i l l u s t r a t e the d i f f e r i n g approaches i n t h i s area. In R. v. Beaule and Ragot (1977), MacDonald, Co. Ct. J . stated: " I t i s not good enough for t h i s Court to say that the accused must have understood the g i s t of the p o l i c e o f f i c e r ' s conversation" (p. 239). As t h i s case's opposite, there i s R. v. Warnica (1980), where the court spoke of understanding as being "apparent i f ... the accused used English words to refuse the demand" (p. 104). This i s a p a r t i c u l a r l y dangerous p o s i t i o n to take because almost any ESL-speaker can be expected to be f a m i l i a r with the question which the p o l i c e o f f i c e r s use, "Do you understand?", because that i s probably the most common i n q u i r y they encounter i n an anglophone country. Ce r t a i n l y , they know that they are being asked i f they understand; what else they may understand i s quite another question. The prejudice, so to speak, tends 103 to run i n one d i r e c t i o n when i t comes to r e s o l v i n g ambiguous s i t u a t i o n s , as we see i n R. v. Sabourin (1984), where the following interchange i s reported (at p. 70): Q: Did he appear to understand that? A: Yes. Q: How d i d you know? A: He showed me no signs. I asked him and he said yes.. Our conversation was quite coherent. He seemed to understand any d i r e c t i o n s I had given him^ before. S i m i l a r l y , i n R. v. P.M. and J.P. (1980), the court accepted the i n v e s t i g a t o r ' s testimony that he "could t e l l " that the interviewee understood (p. 375). The courts do oc c a s i o n a l l y recognize that l i n g u i s t i c a b i l i t y can vary s i t u a t i o n a l l y , as i n E v a l t a l i g a k (above). Such a d i s t i n c t i o n i n v o l v i n g an ESL-speaker was made i n R. v. Tanguay (1984), where the court observed that the accused, a francophone with a grade 6 education, might well not have understood a Breathalyzer demand made i n English. Kovacs, Co.Ct.J. observed: While he might be able to function to some extent i n the English language i n such things as paying a u t i l i t y b i l l and perhaps following simple i n s t r u c t i o n s as a labourer, ... he would not comprehend or understand a reading of h i s r i g h t s i n English as was done i n t h i s case (p. 17). The v a r i a t i o n i n language demand was a l s o a f a c t o r i n R. v. Petrovic (1984), but there the challenging s i t u a t i o n was the courtroom: A person may be able to communicate i n a language for general purposes while not possessing s u f f i c i e n t comprehension or fluency to face a t r i a l with i t s ominous consequences without the assistance of a q u a l i f i e d i n t e r p r e t e r (p. 423). 104 S i m i l a r l y , i n In re C i t i z e n s h i p Act and i n re Abdul-Hamid (1979), the judge found that the appellant could discuss h i s work, his family, and h i s background with ease: "His a b i l i t y to comprehend and express himself i n English as to matters within h i s personal experience i s not merely adequate, i t i s competent" (p. 601). However, he had not been able to deal with questions i n a c i t i z e n s h i p examination. (This i s a promising l i n e of attack for protecting the s. 14 ri g h t . ) Whether the di f f e r e n c e s i n comprehension are a t t r i b u t e d purely to emotional f a c t o r s , higher l i n g u i s t i c demands, o r a l combination of the two—as i n reading a suspect h i s Charter r i g h t s — a n argument can be made for c l o s e l y examining the contention that the suspect understood. A perfunctory reading of the s. 10(b) r i g h t followed by the yes/no question, "Do you understand?", and an a f f i r m a t i v e response from the ESL-speaking suspect, ought not to be considered s u f f i c i e n t proof of comprehension. Comment Using the i n t e r c u l t u r a l communication perspective i n combination with the s o c i a l science l i t e r a t u r e on in t e r r o g a t i o n , we saw that the r i s k of "oppression" would be greater i n the case of ESL-speakers due to t h e i r ethnic o r i g i n s . At the time of in t e r r o g a t i o n , further, the need fo r an i n t e r p r e t e r seems c l e a r , given that the suspect i s being engaged i n communciation which, i f the p o l i c e are successful, may well form the basis of the evidence which w i l l lead to h i s conviction. We saw as well that i t i s doubtful indeed that an ESL-speaker would be l i k e l y to t r u l y understand the s. 10(b) warning, e s p e c i a l l y i f the language of the statute i t s e l f i s used. In general, the interview data was i n accord with the s o c i a l science l i t e r a t u r e i n t h i s area; and i t suggested also 105 that there i s a c u l t u r a l l y v a r i a b l e tendency to give a f f i r m a t i v e answers to questions from i n d i v i d u a l s i n a u t h o r i t y , as was stated i n the i n t e r c u l t u r a l communication textbook summarized at the beginning of t h i s chapter. The appellate and lower-court cases, on the other hand, show divergent tendencies i n the issues which a r i s e . Of c r u c i a l importance of course are the l e g a l questions of whether the Crown must prove that the s. 10(b) r i g h t was comprehended by the suspect, and the whether a p o l i c e o f f i c e r i s always under a duty to take s p e c i a l steps to ensure comprehension when questioning someone with an accent (an ESL-speaker). The courts have not delved very deeply i n t o the matter of how adequate an ESL-speaker's "understanding" r e a l l y i s . One gets the f e e l i n g that the courts are somewhat handicapped by the need to make simple binary findings of f a c t , e.g., the suspect e i t h e r d i d or d i d not understand the r i g h t . This tends to obscure a l l the d e t a i l , a l l the v a r i a t i o n among i n d i v i d u a l s , and the handicap faced by ESL-speakers. 106 CHAPTER FIVE COURTROOM INTERACTION 107 A number of considerations merge i n the courtroom. For one thing, i n t e r p r e t a t i o n occurs there and must be governed according to some set of p r i n c i p l e s which need to be considered. The l i n g u i s t i c a b i l i t y of the witnesses and the accused must be assessed i n order to determine whether the r i g h t to i n t e r p r e t a t i o n given i n s. 14 has a r i s e n . The c r e d i b i l i t y of witnesses i s evaluated by the t r i e r of f a c t . At the st a r t of the t r i a l , the accused pleads to the charge; at the end, i f found g u i l t y , he may be asked to "speak to sentence" on h i s own behalf, i . e . , make submissions to the court regarding h i s sentence. Throughout, the e f f e c t of the s p e c i a l i z e d r e g i s t e r of the l e g a l language w i l l play a part, as w i l l c u l t u r a l d i f f e r e n c e s i n communication norms. In a l l of t h i s , equality f or ESL-speakers i s problematic. The f i r s t task i s to e s t a b l i s h what factors may be involved; f or that, we can turn to the s o c i a l science l i t e r a t u r e , f i r s t , and then to the p r a c t i t i o n e r s . The S o c i a l Science Perspective Several quite relevant studies which bear on ethnic or c u l t u r a l d i f f e r e n c e s i n courtroom i n t e r a c t i o n were located. F i r s t i s Bennett and Feldman's (1981) ethnographic study of courtroom i n t e r a c t i o n which led to the view of " s t o r y t e l l i n g " as the e s s e n t i a l form of courtroom testimony. The researchers began with the proposition that jurors could not perform t h e i r somewhat t e c h n i c a l task without importing some everyday competence to use i n t h e i r f a c t - f i n d i n g r o l e : If t r i a l s make sense to untrained p a r t i c i p a n t s [ i . e . , j u r o r s ] , there must be some i m p l i c i t framework of s o c i a l judgement that people bring i n t o the courtroom from everyday l i f e . Such a framework would have to be shared by c i t i z e n p a r t i c i p a n t s a l i k e . Even lawyers and judges ... must r e l y on some commonsense means of presenting l e g a l issues and cases i n ways that make sense to jurors, witnesses, defendants, and spectators 108 (p. 3). They d i d f i n d such an everyday framework: Legal narratives take the form of s t o r i e s . From t h i s , i t follows d i r e c t l y that c u l t u r a l or other d i f f e r e n c e s i n s t o r y - t e l l i n g a b i l i t y could lead to d i s c r i m i n a t i o n : Stories are symbolic reconstructions of events and actions. People who cannot manipulate symbols within a n a r r a t i v e format may be at a disadvantage even when, as witnesses or defendants, they are t e l l i n g the tr u t h . Moreover, the i n t e r p r e t a t i o n of s t o r i e s requires that t e l l e r and l i s t e n e r share a set of norms, assumptions, and experiences. If witnesses and jurors d i f f e r i n t h e i r understanding of society and s o c i a l a c t i o n , s t o r i e s that make sense to one actor i n a t r i a l may be rejected by another. The biases that r e s u l t from s t o r y t e l l i n g i n t r i a l s are more d i f f i c u l t to combat than the sort of bias that i s based on a straight-forward s o c i a l prejudice (p. 6). It i s important to note that the researchers found that everyone connected with the courtroom scene, from judges to spectators, was r e l a t i v e l y unaware of the r o l e that the story framework plays. They had guessed that lawyers and judges would be able to supply i n s i g h t s i n t o the organization of discourse and i n t e r a c t i o n i n court, but found instead that t h e i r informants had no formal ( " s c i e n t i f i c , " we might say) theories about courtroom processes. They were b a s i c a l l y " u n r e f l e c t i v e " and t h e i r d e s c r i p t i o n s of courtroom events never included anything l i k e s t o r y t e l l i n g . Instead, they .. almost always r e f e r r e d to courtroom procedure such as the rules of evidence, or to s i m p l i s t i c behavioral explanations i n v o l v i n g lawyers' t a c t i c s or damaging testimony (p. 14). The informants' l e g a l i s t i c , non-interactional views are not i n c o n f l i c t with the basic operating procedures of the j u s t i c e system. The researchers observe that o b j e c t i v i t y i n courtroom outcomes r e f e r s only to the formal p r a c t i c e s f or producing l e g a l judgements—there i s no p h i l o s o p h i c a l t e s t o b j e c t i v i t y other than that of conformity to 109 procedural rules and g u i d e l i n e s . Thus a r e s u l t i s considered c o r r e c t only because i t was " c o r r e c t l y " a r r i v e d a t . However, the researchers point out, i n the case of s t o r i e s the matter i s never clear-cut and completely f a c t u a l : Judgements based on story construction are, i n many important respects, u n v e r i f i a b l e i n terms of the r e a l i t y of the s i t u a t i o n that the story represents. Adjudicators judge the p l a u s i b l i l t y of a story according to c e r t a i n s t r u c t u r a l r e l a t i o n s among symbols i n the story ... Stories are judged i n terms of a combination of the documentary or "empirical" warrants f o r symbols and the i n t e r n a l s t r u c t u r a l r e l a t i o n s among the c o l l e c t i o n of symbols presented i n the story. In other words, we judge s t o r i e s according to a dual standard of "did i t happen that way?" and "could i t have happened that way?" (p. 33). This leeway i n i n t e r p r e t a t i o n permits d i s c r i m i n a t i o n against those whose stor i e s are not immediatley sensible or normal. Stories are not comprehensible per se, but must be a c t i v e l y interpreted by the l i s t e n e r , who r e l i e s on h i s own s o c i o c u l t u r a l competence to get a f i x on the meaning of the story: [T]he i n t e r p r e t e r s h i f t s among the information or sets of symbols that have been assimilated, the emerging idea that seems to be the point of the story, and new b i t s of information or groups of symbols. The emerging set of connections and constraints guides the l i s t e n e r ' s use of the vast store of [ c u l t u r a l ] background knowledge about s o c i a l l i f e that i s necessary f o r sensible i n t e r p r e t a t i o n . The inferences that f i l l i n the framework of connections among story symbols are based on various types of background understanding that can enter i n t o the i n t e r p r e t a t i o n of s o c i a l a c t i o n : empirical knowledge, language categ o r i z a t i o n , l o g i c a l operations, [cultural]norms, and a e s t h e t i c c r i t e r i a (p. 50). The l i s t e n e r of course i s guided i n h i s i n t e r p r e t a t i o n of the p l a u s i b i l i t y of s t o r i e s by the categorization and symbolization a v a i l a b l e i n the English language (see Berger and Luckmann 1967), so the ESL-speaker i s at a disadvantage both c u l t u r a l l y and l i n g u i s t i c a l l y , 110 e s p e c i a l l y i f Kaplan's (1966) hypothesis of c u l t u r a l v a r i a t i o n i n r h e t o r i c a l s t y l e s i s v a l i d . Bennett and Feldman suggest that s t o r y t e l l i n g , as the c e n t r a l a c t i v i t y i n t r i a l s , may a c t u a l l y explain more about t r i a l outcomes than do t r a d i t i o n a l v a r i a b l e s such as s o c i a l c l a s s , r a c i a l bias, i n d i v i d u a l d i f f e r e n c e s , and the l i k e . They do make mention of c u l t u r a l and socioeconomic f a c t o r s , s t a t i n g that ... t h e i r true r o l e i s most l i k e l y manifested i n the discrepancies i n language s k i l l s , patterns of language usage, and co g n i t i v e s t y l e s c h a r a c t e r i s t i c of d i f f e r e n t groups i n society (p. 144). Later, they deal more s p e c i f i c a l l y with the ways i n which c u l t u r a l or ethnic d i f f e r e n c e s can lead to unintentional d i s c r i m i n a t i o n : Some i n d i v i d u a l s and groups i n society may become victims of j u s t i c e processes simply because they f a i l to share the communication and thought s t y l e s used by dominant segments of the population .... The victims of the j u s t i c e process are people who cannot communicate i n commonly accepted ways about t h e i r actions, and who, as a r e s u l t of t h i s communication gap, are al s o unable to explain convincingly the sense of f r u s t r a t i o n and i n j u s t i c e that r e s u l t s from t h e i r encounters with formal l e g a l processes (pp. 167-168). When testimony does not meet the expectations of the average judge or juror, "[t]he presumption i s that the speaker's ve r s i o n of an incident i s suspect" (p. 174). The l i s t e n e r does not take a s o c i a l s c i e n t i f i c approach i n rendering judgements. The researchers contrast the more p l a u s i b l e s t o r i e s t o l d not only by p o l i c e o f f i c e r s but by "white, adult, middle-class witnesses (and defendants)" with other people's s t o r i e s ; the r e s u l t i s what the authors term "a bias i n the t r i a l j u s t i c e system against members of subcultures" (p. 174). It should be abundantly c l e a r that t h e i r argument applies d i r e c t l y to the case of the ESL-speakers. I l l As a f i n a l point, we may note what the researchers say about " f a c t - f i n d i n g " and the d i f f i c u l t y i n detecting the influence of the s t o r y t e l l i n g framework. It would be discomforting to suggest to judges or jurors that f a c t o r s involved i n what they do are "anchored i n quite d i f f e r e n t r e a l i t i e s " (p. 177). Since, as laymen, jurors can only apply t h e i r everday norms, understandings, expectations, and experience i n making judgments of c r e d i b i l i t y , "any e f f e c t i v e demonstration of the s o c i a l r e l a t i v i t y of f a c t s and norms would attack the very basis of l e g a l judgement" (p. 177). This would make i t d i f f i c u l t to secure equality for ESL-speakers, then: We cannot convey what t h e i r s p e c i a l needs are without i n e f f e c t challenging the v a l i d i t y of the criminal j u s t i c e system i t s e l f ! Since judges are laymen i n t h i s regard, too, i n the researchers' view, the problem i s compounded even fu r t h e r . Another researcher who sought to shed some l i g h t on courtroom i n t e r a c t i o n i s McBarnet (1981), who conducted an empirical study of lower-court t r i a l s i n Scotland and England i n an attempt to bridge the gap betweeen s o c i o l o g i c a l studies of extra-legal f a c t o r s which enter i n t o decision-making i n the cri m i n a l j u s t i c e system, and summaries of case law. She examined some of the methods through which conviction i s accomplished. She took as her basic issue the paradox that, while the j u s t i c e system i s widely believed to incorporate numerous procedural protections f o r the accused person, and indeed sometimes i t i s even argued that the balance i s tipped i n favor of the accused, s t i l l most accused plead g u i l t y , and of those who take t h e i r cases to t r i a l , anywhere from 90 to 99 percent are convicted (p. 2). She observed a t o t a l of 105 t r i a l s and s c r u t i n i z e d l e g a l decisions i n the attempt to l i n k outcomes i n court (convictions) with the structure of the law 112 i t s e l f . She framed the research question thusly: Given the ambiguities and uncertainties that dog r e a l -l i f e i n c i d e n t s , how are clear-cut f a c t s of the case and strong cases produced? How do judges and j u r i e s come to be persuaded beyond reasonable doubt by one case or another? Evidence, the fact s of the case, strong and weak cases are not simply s e l f - e v i d e n t absolutes; they are the end-product of a process which organises and selects the a v a i l a b l e 'facts' and constructs cases f o r and i n the courtroom (p. 3; emphasis i n the o r i g i n a l ) . It can be seen , then, that McBarnet shares with Bennett and Feldman (1981) an i n t e r e s t i n the r o l e of e s s e n t i a l l y commonsensical or at le a s t n o n - s c i e n t i f i c processes i n f a c t - f i n d i n g and decision-making i n court. She notes two s i g n i f i c a n t aspects of evidence i n court. F i r s t , " truth" does not e x i s t independently, but rather emerges as the r e s u l t of a question-and-answer sequence. She emphasizes the power of the questioner over the person being questioned: Interrogation [in court] means not just f i l t e r i n g p o t e n t i a l information but imposing order and meaning upon i t by the sequence and context of questions asked—whatever meaning i t may have had to the witness, control by questioning can impose the meaning of the questioner (p. 23). Here, obviously, the foreigner and/or ESL-speaker tends to be at a disadvantage r e l a t i v e to others. Second, e s p e c i a l l y i n t r i v i a l i n f r a c t i o n s , which f i l l the lower courts, often i t i s only the policeman's word, or h i s perspective, which leads to a r r e s t , t r i a l , and conv i c t i o n (p. 31). Often conviction i s quite simple i n terms of the elements which must be proved: The law i n marginal offences leaves very l i t t l e to be proved, and since the offences presupposes a s p e c i f i e d offender 'caught red-handed at the scene of the crime' and eye-witnesses, there i s nothing l e f t at  issue but the c r e d i b i l i t y of the p o l i c e versus the  accused (p. 34; emphasis added). She o f f e r s an example from her data of the presumption that the accused 113 "must have done" something: Prosecutor: You weren't shouting and swearing? Accused: No s i r . Prosecutor: Then how do you explain why you're here [ i n court]? (p. 34) McBarnet speaks of "two t i e r s of j u s t i c e " (see Ch. 7), by which she means that the popular idea of the law,, i n c l u d i n g procedural safeguards, the struggle between b r i l l a n t lawyers, and even the c a r e f u l , d e l i b e r a t e t r y i n g of the case, may apply to higher court t r i a l s , but i t does not represent the r e a l i t y of the lower court. She found that only two percent of cases are t r i e d i n the higher courts; the remainder are handled i n the lower courts, without t r a d i t i o n a l due process, i n her opinion (p. 153). The 98 percent which are t r i e d i n the lower courts c o n s t i t u t e "exceptions" to the supposed true r u l e of law (which can i n f a c t be observed i n the higher c o u r t s ) . McBarnet concludes that the lower courts are treated as less than r e a l , so that the image of j u s t i c e can p e r s i s t . One observation she makes which f i t s i n n i c e l y with Bennett and Feldman's work i s that avoiding conviction requires more than merely t e l l i n g one's story. A t r i a l i s a contest between two competing viewpoints, and while the prosecutor w i l l f i n d and e x p l o i t the apparent i n c o n s i s t e n c i e s i n the accused's story, the unrepresented accused i s i n no p o s i t i o n to properly cross-examine the prosecution's witnesses. Yet the accused must cast doubt on the prosecution's case, and t h i s has to be done through a c t i v e means. She r e l a t e s one instance where an unrepresented accused using an i n t e r p r e t e r d eclined to cross-examine the prosecution witness, explaining to the judge: "No, I don't want to waste the court's time with language problems" (p. 130). He was assured 114 that there was plenty of time, and that the court's time would not be wasted. However, he then merely stated what he thought was i n c o r r e c t about the witness's testimony. Unfortuantely, t h i s was not the point i n the t r i a l where he was e n t i t l e d to give evidence.' "The magistrate, having gone overboard to i n v i t e him to speak, now simply stopped him: 'You'll get your chance l a t e r ' " (p. 130). McBarnet made other observations about the m i c r o - p o l i t i c s of courtroom i n t e r a c t i o n . It i s not just that lawyers are able to do things that laymen cannot, she notes. The opposite problem also can be observed, as i n t h i s example: Magistrate: It seems strange a young g i r l l i k e you should know a l l t h i s jargon i f you've not been i n trouble before (p. 137). "[T]o be too au f a i t with law, procedure, and advocacy can mean i n v i t i n g not just r i d i c u l e or i n t e r r u p t i o n but suspicion," (p. 136), McBarnet observes. McBarnet sees her research as i l l u m i n a t i n g the issue of how convictions are produced by making co n v i c t i o n a n a l y t i c a l l y problematic. A commonly held view i s that "[t]he large majority of cases are straightforward and the fa c t s are uncomplicated and c l e a r - c u t " (p. 147), but her study suggests that such a view i s misleading: The f a c t s of a c a s e — a case of any s o r t — are not a l l the elements of the event, but [only] the information allowed i n by the ru l e s , presented by the witnesses, and surviving the c r e d i b i l i t y t e s t of cross-examination. The fa c t s of summary cases may not be simple because of the nature of the offence but because of the lack of p r o f e s s i o n a l expertise i n manipulation of the ru l e s , persuasive presentation of one's own case and d e s t r u c t i v e cross-examination of the other side's. It i s not that complex f a c t s need lawyers, but that lawyers can make 'fa c t s ' complex. That i s exactly t h e i r trade (p. 148; emphasis i n the 115 o r i g i n a l ) . O v e r a l l , McBarnet's viewpoint implies that the various c u l t u r a l f a c t ors i n courtroom communication and courtroom i n t e r a c t i o n are that much more s i g n i f i c a n t , because the fa c t o r s of the case do not "speak f o r themselves"—they are constructed. Wodak's (1980) research conducted i n Europe o f f e r s a nice complement to McBarnet's a n a l y s i s . Her approach to s o c i a l c l a s s i n terms of communication norms and s o c i o l i n g u i s t i c repertoires o f f e r s an analogue f o r c u l t u r a l d i f f e r e n c e s . In f a c t , she frames her topic i n e x p l i c i t l y c u l t u r a l terms: A l e g a l proceeding i n court i s an i n s t i t u t i o n a l i z e d discourse s i t u a t i o n . Individuals can manage t h i s s i t u a t i o n i n a p o s i t i v e l y evaluated way only i f they know the e x p l i c i t and i m p l i c i t values and norms [or the j u s t i c e system] and are able to v e r b a l i z e and operationalize t h e i r knowledge i n spontaneous i n t e r a c t i o n (p. 373). She sought to v e r i f y a number of hypothesis which predicted generally that working- and lower-middle-class defendants would do more poorly i n courtroom s i t u a t i o n s due to c l a s s d i f f e r e n c e s i n l i n g u i s t i c and c u l t u r a l / i n t e r p r e t i v e f a c t o r s . In the q u a l i t a t i v e p o r t i o n of her a n a l y s i s , she stress that the accused has considerable leeway i n " i n t e r p r e t i n g " himself to the court, and predicted that middle-class defendants would make a better impression on the court, by "acting i n accord with the i m p l i c i t commonsense rules or routines of courtroom i n t e r a c t i o n " (p. 374). As a negative example of t h i s , she notes that working-class defendants might plead not g u i l t y even when t h e i r g u i l t was apparent. "They didn't understand that the g u i l t question was much less important than appearing good, honest, and sincere, despite being g u i l t y " (p. 375). 116 Middle-class defendants, on the other hand, were able to b u i l d up a p o s i t i v e i d e n t i t y through courtroom i n t e r a c t i o n : These defendants know the s t r a t e g i e s and values dominating court i n t e r a c t i o n ; they plead g u i l t y , t h e i r story of the accident i s consistent, and t h e i r f a c t s are p l a u s i b l e (p. 375). This accords with Bennett and Feldman's (1981) emphasis on the construction of s t o r i e s . Wodak a l s o noted a tendency for lower-middle-c l a s s defendants to speak i n an elaborate (hyper correct) manner, which i s not h e l p f u l i n constructing a p o s i t i v e i d e n t i t y i n the courtroom (p. 375). She o f f e r s one example which i l l u s t r a t e s what i t means to f a i l to develop a p o s i t i v e i d e n t i t y i n court, or to have developed a negative i d e n t i t y : J : Yes, and what else? D: Well, I was near the crossing, suddenly the car came from the r i g h t , I saw i t , but I couldn't manage to brake anymore. S o — J: You couldn't brake, couldn't you t r y to swerve somehow? D: No. J: Do you know what that i s ? D: No. J : No again. You can't answer t h i s question either? D: Y e s — t o steer somewhere else, d i d you mean? Or? J: Y e s — e v e r y v e h i c l e has a steering wheel. If one turns i t around, the d i r e c t i o n changes, doesn't i t ? If i t ' s not broken. If one turns t h i s thing, i t i s c a l l e d swerving—to put i t b r i e f l y . Understood? Yes? (p. 380) In the q u a n t i t a t i v e a n a l y s i s , Wodak charted s h i f t s of defendants' speech among varying l i n g u i s t i c cues, from Standard German to Viennese 117 D i a l e c t , which was taken as i n d i c a t i v e of i n s e c u r i t y (see p. 376). Again, a number of findings supportive of the general hypothesis emerged: Middle-class defendants maintain one l i n g u i s t i c s t y l e throughout the whole i n t e r a c t i o n . They manage c o n f l i c t s , and ambivalence i s not manifest. Working-class defendants don't know the s i t u a t i o n . They w i l l react more strongly to parameters l i k e f ear. They s h i f t s t y l e s more often. Lower-middle-class defendants are very insecure i n such a formal s i t u a t i o n , having no stable i d e n t i t y . They t r y to speak as well as possib l e , leading to hypercorrection (p. 377). This research can e a s i l y be applied to ESL-speakers, i n that they may suffer much the same fa t e i f required to get by with t h e i r l i m i t e d English, as compared with having the assistance of an i n t e r p r e t e r . A somewhat s i m i l i a r approach was taken by Spencer (1983) i n h i s study of probationer's "subjective o r i e n t a t i o n . " He used f i e l d observations, interviews with probation o f f i c e r s (PO's), and audio tape recordings of 23 interviews to analyze the way that PO's c l a s s i f y probationers. He i d e n t i f i e d four components of the subjective o r i e n t a t i o n of the probationers: explanations ("accounts") of the offenses; a t t i t u d e s toward the offenses; attitudes toward the consequences of the offenses; and a t t i t u d e s toward changing future behavior. His study i s comparable to others reviewed here, and relevant i n the same way, i n that i t deals with r e l a t i v e l y subtle, out-of-awareness factors which play a part i n the evaluation of i n d i v i d u a l s . Spencer d i v i d e d accounts (reasons) i n t o " r a t i o n a l " and "non-r a t i o n a l . " The former showed independence and planning on the part of the c r i m i n a l ; the l a t t e r type of account was characterized by lack of 118 c o n t r o l or independence, and lack of planning. The non-rational account might lead to a lesser sentence since l e s s personal r e s p o n s i b i l i t y was implied. The PO's themselves believed that offenses which had been planned should be treated more harshly (p. 572), but they d i d not l i k e to accept non-rational accounts without corroborating evidence. [Defendants who of f e r e d r a t i o n a l accounts' were generally viewed as cooperative and responsible; those who made (unwarranted) claims to non-rational accounts were seen as presenting a " l i n e " (p. 572). Probationers from other c u l t u r a l backgrounds whose non-rational accounts seem unwarranted because t h e i r motivations are unfamiliar might run i n t o a kind of prejudice, i t would seem. On the other hand, one the existence of p a r t i c u l a r types of pressures peculiar to s p e c i f i c groups i s known, the l e g a l system may "discount" such accounts just to keep such i n d i v i d u a l s from thereby gaining an advantage. The PO's favored defendants who acknowledged the wrongfulness of t h e i r actions and shared the PO's d e f i n i t i o n of the offense as serious, while ... defendants who d i d not even pay l i p service to acceptable [norms] i n ... interviews were seen as not taking the proceedings s e r i o u s l y — i n e f f e c t an improper demeanor (p. 573). Much the same r e s u l t was found i n the case of expressing concern about the consequences of the offense and d i s p l a y i n g a willingness to pursue an appropriate s o l u t i o n to reduce the l i k e l i h o o d of a recurrence of the offense. Every part of the subjecive o r i e n t a t i o n i s "negotiated." In applying t h i s viewpoint to ESL-speakers' courtroom i n t e r a c t i o n , we can ask what s i m i l i a r evaluations of defendants' at t i t u d e s are made by the court; and how the defendants' l i n g u i s t i c s k i l l s and f a m i l i a r i t y with the values which are important to d i s p l a y i n court may a f f e c t courtroom 119 evaluations of character and c r e d i b i l i t y . Again, the i m p l i c a t i o n i s that ethnic o r i g i n a f f e c t s e q u a l i t y before the law to the extent that such factors which influence outcomes are c u l t u r a l l y v a r i a b l e . Nonverbal communication i n the courtroom i s another v a r i a b l e of undoubted yet unmeasured s i g n i f i c a n c e . According to the New York Times (June 17, 1985), an i n t e n s i v e questionnaire study of people who had been jurors revealed that v e r d i c t s were often based on witnesses' "demeanor, reputation, s o c i a l l i f e and appearance." While no study was located which deals s p e c i f i c a l l y with c r o s s - c u l t u r a l d i f f e r e n c e s i n nonverbal communication i n courtroom settings, i t i s known that nonverbal communication does vary across c u l t u r e , so i t i s worthwhile considering a manual for lawyers (Rasicot 1983) which trea t s "the v i s u a l t r i a l " and explains how to manage courtroom behavior for optimum persuasiveness. Rasicot points out that, while judges and lawyers are used to the greater r e l i a n c e on v e r b a l i z a t i o n that characterizes courtroom i n t e r a c t i o n , and can therefore attend more c l o s e l y to verbal communication and pay l e s s a t t e n t i o n to nonverbal communication, t h i s i s not the case with jur o r s . Rasicot's viewpoint i s p a r t i c u l a r l y relevant for the present study i n that some of h i s observations are cast i n s p e c i f i c a l l y s o c i o l i n g u i s t i c , s o c i o l o g i c a l , and c u l t u r a l terms. Rasicot o u t l i n e s f i v e communicative cues used i n everyday l i f e i n assessing others: dress, body language, use of space, time, and v e r b a l image. He makes t h i s observation about time and a t t e n t i o n spans: "After seventeen to twenty minutes, the l i k e l i h o o d of jurors completely processing what they hear r a p i d l y diminishes" (p. 13). In a d d i t i o n , a t t e n t i o n spans are longest e a r l y i n the morning, and e a r l y i n the t r i a l (p. 13). One i m p l i c a t i o n i s that the r e l a t i v e e f f e c t of nonverbal 120 communication changes from time to time. Another i s that when witnesses' testimony has to be tran s l a t e d (which takes twice as long), the jurors are less well able to pay attention to defense counsels arguments, since the prosecution presents i t s case f i r s t . Rasicot makes some unique observations concerning verbal behavior as well. One i s that mispronounced words and the use of slang have a negative e f f e c t upon c r e d i b i l i t y i n the eyes of juror s . Inappropriate use of slang i s a feature of the speech of some ESL-speakers who have acquired English i n informal environments. This t h e s i s i s one well worth i n v e s t i g a t i n g e m p i r i c a l l y , since i t bears on the s. 14 r i g h t or, at a minimum, the e q u a l i t y p r o v i s i o n . Under the r u b r i c of " c u l t u r a l norms," Raiscot discusses a number of fac t o r s , two of which apply d i r e c t l y to ESL-speakers. The North American c u l t u r a l norm of f a i r n e s s applies i n the courtroom i n the case of what Rasicot c a l l s " o v e r k i l l . " Jurors w i l l t o l e r a t e a lawyer d i s c r e d i t i n g a witness only up to a p o i n t — a f t e r that, they may f e e l sympathy for the witness because he has been subjected to o v e r k i l l and i s now a v i c t i m . Rasicot observes that "[o]ne can e f f e c t i v e l y d i s c r e d i t f a c t s or actions, but not the person" (p. 15). ESL-speakers from cultures where the pr e f e r r e d verbal s t y l e i s one which s t r i k e s North Americans as exaggerated might v i o l a t e the o v e r k i l l norm when defending themselves, i t would seem. On the other hand, p r i o r experience with j u d i c i a l systems where g u i l t i s presumed and one must e s t a b l i s h h i s innocence, through strenuous persuasion, might also v i o l a t e jurors' c u l t u r a l expectations i n a s i m i l a r manner. (Ce r t a i n l y some ethnic groups are stereoptyped as "pushy.") An observation of some p o t e n t i a l s i g n i f i c a n c e for ESL-speakers 121 made by Rasicot i s that, s o c i a l l y , many persons i n the immediate s o c i a l environment are "nonpersons," by which Rasicot means "a person we view as an object or as a service provider" (p. 16). " I t i s much easier f o r the jury to sentence an 'object' to prison than i t i s to sentence 'John' to p r i s o n , " e s p e c i a l l y because " [ v ] i s u a l images are assessed emotionally" (p. 16). When the accused uses an i n t e r p r e t e r , i t would seem, he i s thereby cut o f f from the judge and the jury i n terms of the most important medium of communication i n the courtroom, spoken language. Thus both ESL-speakers who need i n t e r p r e t a t i o n and those who are not c a l l e d to t e s t i f y by t h e i r lawyers because of t h e i r poor English may f i n d themselves i n t h i s s i t u a t i o n . Another nonverbal communication channel which v a r i e s across cultures and ethnic groups i s dress. In North America, the "power continua" for men and women a l i k e share several a t t r i b u t e s with respect to dress. The c r e d i b l e person of either sex wears: three-piece s u i t s (dark blue preferred), white s h i r t s with st r a i g h t c o l l a r s , p lain-toed shoes, inconspicuous jewelry; and short hair (pinned up i f necessary, i n the case of a woman) (see pp. 23-26). In cultures with greater r o l e separation than i s found i n North American culture, i t w i l l be more d i f f i c u l t for women i n p a r t i c u l a r to conform to these expectations; indeed, for a woman to dress l i k e a man would be proscribed i n many cult u r e s . Another problem for ethnic groups i s what Rasicot's manual would c l a s s i f y as "exotic" dress or f a c i a l h a i r . A l l such f a c t o r s might apply even when an i n t e r p r e t e r i s used, and, further, the in t e r p r e t e r himself may be involved, i f a study by Kassin (1983) or j u r i e s ' reactions to i n d i v i d u a l s who read out testimony i n court given by a witness who cannot appear i n person can be applied. 122 In d eposition testimony, the witness has previously given testimony under oath at a p r e - t r i a l hearing, and the t r a n s c r i p t of that testimony i s read aloud from the witness stand by the "deposition reader." Kassin notes two reasons f o r concern with the reading of depositions. F i r s t , other things being equal, the witness's testimony i s l e s s e f f e c t i v e when read out i n court by someone e l s e . Second—and more relevant to the present s t u d y — j u r o r s ' impressions of the absent witness, and the weight placed on that testimony, "may be biased by the manner i n which the deposition i s read by a t h i r d party" (p. 282). Kassin found t h i s warning i n a t r i a l lawyers manual: [w]hoever i s playing the part of the witness on the stand w i l l , most assuredly, be i d e n t i f i e d with the witness. True, he i s nothing more than an actor, but human beings tend to associate a voice with a person; so be c e r t a i n that the "actor" projects a favorable image (quoted at p. 282). Kassin set out to t e s t t h i s hypothesis. If t h i s "messenger e f f e c t " could be demonstrated, i t would have implications not only for the use of deposition readers but a l s o , i t would seem, for i n t e r p r e t a t i o n . In h i s experiment, Kassin presented 88 undergraduate subjects with a written summary of a c r i m i n a l t r i a l and asked them questions concerning both the defandant's g u i l t as well as s p e c i f i c aspects of the testimony given. In a d d i t i o n , the subjects viewed a videotape of the t r a n s c r i p t being read. Kassin varied the r o l e played by the person reading, the t r a n s c r i p t i n the videotape. For half of the subjects, the reader was said to be the witness himself, reading a sworn statement he had made e a r l i e r . For the other group of subjects, the reader was said to be someone other than the witness who was reading the witness's testimony (the d e p o s i t i o n reader). The second v a r i a b l e was demeanor. In half of the cases, p o s i t i v e demeanor was portrayed. The actor was 123 " a t t e n t i v e , p o l i t e , confident, and unhesitant i n h i s s t y l e of answering questions" (p. 283; emphasis added) In the negative condition, he was "impolite, often annoyed, cautious, and fumbling" p. 283; emphasis added). The r e s u l t s were as predicted. The mock jurors' assessment of the supposed witness's c r e d i b i l i t y was influenced by h i s demeanor. In addi t i o n , the subjects were influenced by the demeanor of a "surrogate reader": In the surrogate condition, although subjects' inferences about the character of the actual witness were not af f e c t e d by the manner i n which the deposition was read, t h e i r v e r d i c t s and t h e i r perceptions of the testimony were indeed biased by the presentation f a c t o r (p. 286). This r a i s e d the p o s s i b i l i t y , of course, that i n t e r p r e t e r s , too, can influence t r i a l outcomes by t h e i r demeanor. Also, i t suggests that ESL-speakers t e s t i f y i n g without the assistance of an i n t e r p r e t e r are at a disadvantage i n that they w i l l be comparatively "fumbling," rather than "unhesitant." (The f i r s t problem can be avoided by using well q u a l i f i e d i n t e r p r e t e r s . ) Kassin f e l t that the r e s u l t s corroborated the general thesis advanced long ago that "people cannot evaluate the content of a message independent of the speaker who d e l i v e r s i t " (p. 286). S i m i l a r l y , accent • may a f f e c t t r i a l outcomes i n some way. Seggie (1983) studied the a t t r i b u t i o n of g u i l t as a function of ethnic accent. Experimental subjects were presented with descriptions of one of three d i f f e r e n t types of crimes ( t h e f t , violence against property, and violence against the person) and t o l d that i t was not known which types of i n d i v i d u a l s were involved i n which crimes. After that, the subjects heard the voices of three i n d i v i d u a l s , only one of whom, they were t o l d , had been 124 charged with the p a r t i c u l a r crime. Each i n d i v i d u a l had a d i f f e r e n t accent: English "Received Pronunciation," Broad ("non-standard") A u s t r a l i a n , and Malaysian Chinese English. They were requested to estimate the p r o b a b i l i t y that each of the three i n d i v i d u a l s had committed the crime. The were also asked what punishment they would favor i f the i n d i v i d u a l were found g u i l t y by the court. The data d i d not reveal a simple r e l a t i o n s h i p between evaluated p r o b a b i l i t y of g u i l t and either accent or type of crime, but there was a highly s i g n i f c a n t d i f f e r e n c e between anglophone accents: The A u s t r a l i a n accent was rated as being s i g n i f i c a n t l y more probable of being g u i l t y of the crimes i n v o l v i n g v i o l e n c e whilst the English accent a t t r a c t e d a higher g u i l t a t t r i b u t i o n f o r the crime of embezzlement (p. 203). For the Asian accent, no clear picure emerged. Seggie f e l t that t h i s i n d i c a t e d that "pre-existing structures with respect to the English and A u s t r a l i a n accents are highly formed whilst those r e l a t e d to Asian accents are l e s s d i s t i n c t " (p. 204). (In f a c t , few subjects i d e n t i f i e d the accent; most thought i t was Japanese.) For the Charter, besides the obvious question of the disadvantage of having to speak i n accented English, there i s also the question of what the e f f e c t i s of t e s t i f y i n g through an i n t e r p r e t e r with a noticeable ethnic accent. The s p e c i f i c question of how l e g a l language a f f e c t s courtroom i n t e r a c t i o n where ESL-speakers and i n t e r p r e t e r are involved i s also important i n framing the issues. In the case of both l e g a l language i t s e l f , and the e f f e c t s of speech s t y l e s i n the courtroom, there e x i s t competent studies which can help us appreciate what va r i a b l e s are involved. The survey of l e g a l language by Danet (1980) i s apparently the most well balanced treatment a v a i l a b l e at t h i s time. It d i f f e r s 125 from other works which l i m i t themselves to a narrow conception of language as a s t r i c t l y l i n g u i s t i c phenomenon: It c a r e f u l l y locates language within adjudication, and adjudication within c u l t u r e . Applying speech act theory d i s t i n c t i o n s , Danet points out that language i s used i n law both to create l e g a l r e l a t i o n s and to adjudicate. Many l e g a l actions i n a d j u d i c a t i o n are performed l i n g u i s t i c a l l y : [L]awyers' objections, sentences, and a p p e l l a t e opinions ... "count" ... because of the i n s t i t u t i o n a l i z e d authority of speakers to engage i n these acts (p. 460). One subclass of such speech acts i s that of "representative d e c l a r a t i o n s , " such as indictments, confessions, pleas, and v e r d i c t s . These are " f a t e f u l " regardless of t h e i r t r u t h value. The e f f e c t of the utterance can. be avoided only by showing, for instance, that there was a lack of mental capacity, mistake, duress and so on. Danet discusses the questions of whether l e g a l language t r u l y i s a language. It i s not, she concludes, but a case can be made for considering i t either as a d i a l e c t or as a r e g i s t e r (p. 474). She adopts Ferguson's concept of " d i g l o s s i a , " according to which l e g a l language would be a form of English which i s not the native language of any group, which i s acquired through formal education, and which d i f f e r s i n grammar, syntax, and vocabulary from the other (lower) form of the language. ESL-speakers, i t seems, do not stand i n the same r e l a t i o n s h i p to l e g a l English as do native speakers of E n g l i s h ; they are one more step removed, as i t were. This, combined with the performative nature of language i n interrogation, for instance, may put them at a considerable disadvantage. A number of studies have surveyed the d i f f e r e n c e s between l e g a l 126 Eng l i s h and ordinary English (see pp. 474-484). The l e x i c a l and s y n t a c t i c differences are becoming more widely known i n s o c i a l science and even i n society at large, and need not be reviewed here except i n s o f a r as they may a f f e c t i n t e r r o g a t i o n and court i n t e r p r e t i n g i n a d i r e c t manner. More i n t e r e s t i n g perhaps are di s c o u r s e - l e v e l d i f f e r e n c e s . One point Danet makes i s that l e g a l sentences are often not connected one to another as they are i n ordinary English. Instead, they may be strung together i n l i s t s , so that the reader (or l i s t e n e r ) has d i f f i c u l t y i n determining which sentences are most important. A s i m i l a r point i s that l e g a l English i s "overcompact": [E]ach sentence i s made to count f o r too much. In other kinds of prose, the writer often expresses an idea one way and then restates i t ' i n somewhat d i f f e r e n t form, giving the reader more time to digest (p. 482). This i s even more important, i t would seem, when l e g a l language intended to be read i s , for whatever reason, read aloud to a l i s t e n e r , as i s the case with the s. 10(b) caution. The caution i s already dense with meaning, and t h i s d i f f i c u l t y i s added to the ESL handicap. Danet reviews the P l a i n English movement i n law but i s reserved i n her enthusiasm for i t , and questions whether l i n g u i s t i c changes can do very much to a l t e r " s o c i o l e g a l r e a l i t i e s . " "Language" and " f a c t s " are often inseparable i n law,. Danet shows. In the case of persuasion, she notes that, i n e f f e c t , l e g a l arguments can be made only to the extent that they do not v i o l a t e commonsense b e l i e f s , as McBarnet implies (see above). "The f a c t s " of the case do not p r e e x i s t , but are constructed i n court through i n t e r a c t i o n (p. 509): Speakers can develop arguments only by l i n k i n g them to the taken-for-granted premises of l i s t e n e r s . A l l argumentation depends on what i s accepted and ackowledged as true, normal, or probable; many of 127 these premises are drawn from the realm of common sense. In human a f f a i r s there i s no d i r e c t and immediate means of a t t a i n i n g t r u t h , the employment of which would be preliminary to any r h e t o r i c . Truth i s rather the outcome of dialogue, d i s c u s s i o n , and the confrontation of opinions (p. 509). An example from one of Danet's own empirical studies i s that of basing a l e g a l argument on the commonsense assumptions which are keyed to the l e x i c a l items "fetus" versus "a baby" (see p. 511). It i s doubtful whether even the assistance of an i n t e r p r e t e r enables an ESL-speaker to handle t h i s aspect of courtroom communication as well as a native speaker of English. Danet also discusses the idea that the essence of lawyers' work i s the t r a n s l a t i o n of lay discourse i n t o l e g a l discourse (p. 511). This would challenge the view of court i n t e r p r e t a t i o n as merely a kind of t e c h n i c a l task. Perhaps i t should be viewed as double t r a n s l a t i o n . A r e l a t e d point involves the r o l e of c u l t u r a l competence. Danet quite properly observes that e f f e c t i v e persuasion implies framing the argument i n terms of the p a r t i c u l a r kinds of j u s t i f i c a t i o n s and excuses recognized i n the culture i n question (see 512). O v e r a l l , she states, "[w]e have l i t t l e systematic knowledge about the circumstances i n which j u s t i f i c a t i o n s and excuses succeed i n g e t t i n g the accused o f f the hook" (p. 535). She summarizes the f i n d i n g of one of her own e a r l i e r studies, which i s rare i n that i t focused d i r e c t l y on the r o l e of c u l t u r a l d i f f e r e n c e s i n i n t e r c u l t u r a l persuasion: In a study of persuasive appeals i n l e t t e r s of complaint to the I s r a e l i customs a u t h o r i t i e s , people of Middle Easterm o r i g i n , e i t h e r unemployed or i n low-status occupations, tended to choose a l t r u i s t i c appeals, whereas those of Western o r i g i n , employed, and i n higher-status occupations, o f f e r e d more normative appeals. Although members of the former category were more l i k e l y to "get a brake," i t was not because they appealed to the a l t r u i s m of the 128 o f f i c i a l s (pp. 535-536). Extrapolating, we can guess that foreigners w i l l not be as successful as native-born Canadians i n j u s t i f y i n g or excusing t h e i r actions, due to both c u l t u r a l and l i n g u i s t i c v a r i a b l e s . This may not bear d i r e c t l y on f i n d i n g of g u i l t , but i t can surely influence sentencing or what the probation recommendation i s . Danet, too, notes that the i n t e r a c t i o n a l force of questions d i f f e r s according to t h e i r structure: Declaratives are the most coercive because they t e l l more than they ask ("You d i d i t . . . " ) ; next are i n t e r r o g a t i v e yes/no or choice questions ("Did you do i t ? " ) ; t h i r d are open-ended who-what-where-when-why questions—wh questions, for short ("What d i d you do that might>"); l e a s t coercive and most i n d i r e c t and p o l i t e , are "requestions," questions that s u p e r f i c i a l l y i n quire about the witness's w i l l i n g e s s or a b i l i t y to answer but i n d i r e c t l y require information ("Can you t e l l us what happened?") (p. 521) Danet reports that i n a study of c r i m i n a l t r i a l s i n Boston, an average of 87 percent of lawyer's questions i n cross-examination were coercive, while on d i r e c t examination the proportion was only 47 percent (p. 521). The proportion of coercive questions on cross-examination increased with the seriousness of the offense, which Danet figures may mean that "questions may also be a form of symbolic punishment" (p. 521). This has d i r e c t implications for the question of whether the s. 10(b) comprehension check ("Do you understand?") i s a s u i t a b l e one for ESL-speakers. In addition, since yes/no questions are used proportionately more often i n foreigner t a l k (see Hatch 1983, discussed e a r l e r ) , ESL-speakers w i l l experience more coercion i n interrogation, and courtroom questioning. Danet shows that answering questions can also be problematic. She 129 c i t e s two studies which suggest that ESl-speakers "have d i f f i c u l t y managing both the form and content of r e p l i e s and therefore make an u n j u s t i f i a b l y poor impression" (p. 536). She notes as well that while native speakers of English may i n t e r r u p t a prosecutor more often than he in t e r r u p t s them, i n one study a prosecutor cross-examining an ESL-speaker interrupted her seven times as often as she interrupted him (see p. 533). This suggests that ESL-speakers have d i f f i c u l t i e s on t h e i r own (the e f f e c t of using an i n t e r p r e t e r i s unclear). While Danet's survey was conducted as i f s o c i e t i e s were l i n g u i s t i c a l l y homogeneous, she does acknowledge that many fact s of her survey should be ... expanded, q u a l i f i e d , and reworked i n order to incorporate s i t u a t i o n s i n which the communication d i f f i c u l t i e s separate not just speakers of d i f f e r e n t d i a l e c t s or r e g i s t e r s of the same language but speakers of d r a s t i c a l l y d i f f e r e n t language (p. 546). Not long a f t e r her review appeared, one of the most frequently c i t e d empirical studies of language i n the courtroom was published. O'Barr (1982) took a b a s i c a l l y i n t r a c u l t u r a l approach, but again the v a r i a b l e dealt with are c l o s e l y l i n k e d to ethnic o r i g i n . O'Barr wanted to study the e f f e c t of l i n g u i s t i c form i n courtroom communication. Though, as stated, he does not tre a t i n t e r c u l t u r a l communication d i r e c t l y , he does conceive of the a b i l i t y to respond to form i n communication as c u l t u r a l l y patterned: "[T]o hear the message communicated by form, a l i s t e n e r must r e l y on vast knowledge acquired through membership i n a p a r t i c u l a r c u l t u r e " (p. 2). Knowledge of t h i s sort " i s among the hardest to explain to foreigeners and among the most d i f f i c u l t to acquire i n another c u l t u r e " (p. 2). Another aspect of courtroom communication i s that lawyers are guided by p r a c t i c a l advice found i n 130 p r a c t i c e manuals. This pragmatic, commensensical body of knowledge i s not part of the " o f f i c i a l " l o r e of the law, e.g., i t i s not taught i n law schools. Much of what transpires i n courtroom, then, cannot be gleaned from the rules of evidence or the court's own rules of procedure. O'Barr b r i e f l y surveys the well-known analysis of l e g a l language authored by Me l l i n k o f f (1963) and a l s o recounts some observations made by C r y s t a l and Davy (1969). Among these writers' observations we may note some which are more relevant f o r ESL-speakers' s i t u a t i o n . For one thing, some common words are give a d i f f e r e n t meaning i n law, e.g., "action" to mean lawsuit, or "instrument" to mean l e g a l document. We might add to these, " r e t a i n " to mean h i r e , and " i n s t r u c t " for get advice from. For another thing, the instrumental nature of l e g a l language brings with i t the requirement of unambiguity, and the consequence that, since i t i s intended to be read by other l e g a l l y - t r a i n e d i n d i v i d u a l s , "[a]lmost no concern i s given to whether i t i s comprehensible to lay people since i t i s not r e a l l y intended that they should read l e g a l documents" (p. 19). It i s unusual, then, to f i n d written l e g a l language used o r a l l y with laypersons, e s p c i a l l y i f they are under stress at the time. Both the Miranda and the Charter warnings are good examples of t h i s . O'Barr, an anthropologist, had found i n e a r l i e r research that four v a r i e t i e s of spoken langauge can be found i n the courtroom: formal l e g a l language, such as that used by judges i n g i v i n g reasons for t h e i r judgements; Standard English; informal English; and subcultural v a r i e t i e s , which for O'Barr r e f e r s to d i a l e c t s spoken by poor people of a l l races. O'Barr observes that courts seem to assume that no one who 131 speaks English needs " i n t e r p r e t a t i o n " of "court-talk" (formal l e g a l language); but i f they do, i t i s for the lawyer, not the court, to a s s i s t . These problems, he states, have not received the a t t e n t i o n that speaking through an i n t e r p r e t e r has (pp. 39-40). Another j u d i c i a l "working assumption" i s that "'English-speaking' jurors understand 'English-speaking' witnesses, regardless of c u l t u r a l background and d i f f e r e n c e s i n d i a l e c t " (p. 41). This we might c a l l the naive view of i n t e r c u l t u r a l communication. O'Barr notes another problem: ESL-speakers may not be able to understand t h e i r lawyers. There i s also something which could be termed the naive view of interpersonal communication. In t h i s view, s o c i o l i n g u i s t i c v a r i a t i o n has no e f f e c t on interpersonal communication: Variations i n presentational s t y l e on the parts of witnesses or lawyers, although possibly important, are not matters with which the law should concern i t s e l f since these are not questions of f a c t , but of i d i o s y n c r a t i c , s t y l i s t i c v a r i a t i o n (p. 41). Another way to view t h i s aspect of the l e g a l perspective i s to say that the systematic v a r i a t i o n among d i f f e r e n t groups i s not recognized. Demeanor evidence i s recognized, however. This can include p a r a l i n g u i s t i c features, s t y l e , or nonverbal behavior. Since the appellate court o r d i n a r i l y has no record of witnesses' demeanor, us u a l l y the t r i a l court's determination on t h i s point w i l l stand (pp. 42-43). The paradox that O'Barr sees i s that while American courts recognize the s i g n i f i c a n c e of demeanor, "the nature of t h i s s i g n i f i c a c e i s so obscure that no rules can be established for assessing such evidence," and thus "an element at the very center of the functioning of the l e g a l system i s outside the law's c o n t r o l " (p. 44). This could be said as well for assessments of p a r t i e s ' or witnesses' l i n g u i s t i c a b l i l i t y . 132 O'Barr's methodology involved observation of many t r i a l s i n North Ca r o l i n a (150 hours' worth wre recorded on audio tape), and interviews with lawyers and judges. He r e l a t e s that most informants q u i c k l y came to understand what problems the researchers were i n t e r e s t e d i n , but the l e g a l professionals themselves added l i t t l e i n the way of i n s i g h t s , as Bennett and Feldman found i n t h e i r research (see above). O'Barr says: Although lawyers and judges expressed the opinion that language st r a t e g i e s are important i n the courtroom, they could seldom i d e n t i f y with any p r e c i s i o n what st y l e s they though were s i g n i f i c a n t (pp. 55-56). Such a f i n d i n g implies that judges, i n dealing with ESL and i n t e r c u l t u r a l communication issues, lack a s u i t a b l e conceptual framework for appreciating the problems involved. The i n i t i a l studies led to a four-part c l a s s i f i c a t i o n scheme for analyzing speech s t y l e i n court. The four patterns observed were: a. "powerful" (rather than "powerless") speech s t y l e b. n a r r a t i v e (versus fragmented) testimony c. hypercorrection [as Wodak (1980) found] d. i n t e r r u p t i o n s or simultaneous speech Subsequently, the researchers conducted s o c i a l psychological experiments using c o l l e g e students as subjects wherein d i f f e r e n t versions of the same taped testimony were l i s t e n e d to, and questions concerning the speaker on the tape were answered. O'Barr found that powerless speech, sometimes conceptualized i n terms of "women's speech," was used by both men and woment i n the courtroom, though more women used such speech. The features of powerless speech have become better known i n recent years: hedges (e.g., "sort o f " ) ; (s u p e r ) p o l i t e terms; tag questions; question intonation; "empty" adjectives (e.g., "divine," "cute"); hypercorrect grammar and pronunciation; lack of sense of humor; use of d i r e c t 133 quotations (rather than paraphrase); s p e c i a l lexicon (e.g., domain of c o l o r s : "magenta," "chartreuse"); and "speaking i n i t a l i c " (intonation equivalent to quotation marks i n d i c a t i n g meta-issues); " i n t e n s i f i e s " such as "so," "very," with exaggerated pronuciation. The data showed that both male and female witnesses who used the powerful s t y l e were considered more convincing, t r u t h f u l , competent, i n t e l l i g e n t , and trustworthy (see pp. 74 -75 ) , which suggested that "differences [in s t y l e ] may play a consequential r o l e i n the l e g a l process i t s e l f " (p. 7 5 ) . The second v a r i a b l e investigated experimentally, n a r r a t i v e versus fragmented testimony s t y l e s , . r e f e r s to the length of the witness's response during d i r e c t questioning (by one's lawyer, rather than i n cross-examination by the other s i d e ) . In the e a r l i e r , observational part of the study, i t had been found that i n d i v i d u a l witnesses tended to be somewhat consistent as to the length of t h e i r answers. One factor which seemed important i n response length was that of the lawyer's r o l e i n questioning h i s c l i e n t : It appeared ... that long, n a r r a t i v e answers by witnesses are p o s s i b l e only when lawyers r e l i n q u i s h some c o n t r o l , allowing more leeway to witnesses i n anwering question. When such opportunity i s "offered," i t i s by no means always accepted. But i t seems v i r t u a l l y impossible for i t to be assumed without open c o n f l i c t except when the opportunity for a n a r r a t i v e answer i s offered. Thus, i t seemed information about both the assertiveness of the witness and the lawyer-witness r e l a t i o n s h i p i s encoded within the mode of lawyer-witness i n t e r a c t i o n (p. 7 7 ) . Jurors would "decode the r e l a t i o n s h i p that apparently existed, and draw inferences about the witness's assertiveness and h i s r e l a t i o n s h i p with h i s lawyer, according to a t t r i b u t i o n theory. The general hypothesis was confirmed by the data, but with one i n t e r a c t i o n e f f e c t noted. When 134 psychology students heard a male witness who gave fragmented r e p l i e s , they gave the expected negative response. O'Barr t h e o r i z e s : [T]he lay subjects may believe that only a lawyer who d i s l i k e s a male witness would deny him the usual opportunity to exercise male assertiveness through d e l i v e r i n g h i s testimony i n a n a r r a t i v e s t y l e (p. 81). Law students, on the other hand, gave unusually high r a t i n g s to females who d e l i v e r e d n a r r a t i v e testimony. O'Barr hypothesizes that, from t h e i r t r a i n i n g , the law students would expect the lawyer to maintain t i g h t c o n t r o l over h i s witness, so the f a c t that a female i s "allowed" to give nar r a t i v e answers must in d i c a t e a p o s i t i v e evaluation of her by her lawyer. O'Barr's d i s c u s s i o n of the lawyer's r o l e i n t h i s aspect of testimony has d i r e c t implications f or the r o l e of court i n t e r p r e t e r s : [ l ] t i s not only possible but even l i k e l y that lawyers quite l i t e r a l l y put a language s t y l e i n t o the mouth of t h e i r witnesses. For example, short questions are l i k e l y , according to the response-matching phenomenon, to e l i c i t short answers, or the fragmented s t y l e . S i m i l a r l y , longer questions might be expected to e l i c i t more nar r a t i v e responses. Since we know that the two s t y l e s are not evaluated equally, i t would seem that t h i s represents an opportunity f o r a l i n g u i s t i c leading of the witness, one that i s consequential i n the reception and evaluation of testimony (pp. 82-83; emphasis i n the o r i g i n a l ) . Interpreters can c o n t r o l the testimony of the speaker, i t would seem, by providing t r a n s l a t i o n s at shorter i n t e r v a l s . They may seek to produce shorter responses from the witness i n order to avoid being seen as "generating' long-winded responses. In a d d i t i o n , i t i s often noted that i n t e r p r e t e r s may shorten the witness's response i n t h e i r t r a n s l a t i o n of i t , i . e . , summarizing i t . If so, then ESL-speakers are forced i n t o speech s t y l e s which have been found to be comparatively negatively evaluated, i . e . , i f the i n t e r p r e t e r s act i n such ways. 135 The same research technique was used to study the e f f e c t of hypercorrect speech. Following Labov's view, i t was hypothesized that hypercorrect speech would be interpreted as i n d i c a t i n g either low s o c i a l status or a d e s i r e to be i n g r a t i a t i n g . The data showed that hypercorrect speech was considered less d e s i r a b l e , i n that the witness was viewed as less convincing, l e s s competent, l e s s q u a l i f i e d , and less i n t e l l i g e n t . There was even a greater tendency f o r mock jurors to vote for l a rger monetary awards against the defendant who used the hypercorrect s t y l e ! This offered further evidence of the a b i l i t y of jurors to react to subtle differences i n s t y l e and of "the p a r t i c u l a r tendency to d i s c r e d i t the testimony of and be pun i t i v e toward a witness who attempts to speak with an inappropriate degree of formality" (p. 86). Again, the ease with which t h i s can be applied to court i n t e r p r e t e r s i s c l e a r : Bearing i n mind the r e a l i t y of the "messenger e f f e c t , does an in t e r p r e t e r who translates the witness's testimony i n t o hypercorrect English a f f e c t the evaluation of the witness and his testimony? As f o r the fourth v a r i a b l e , interruptions and simultaneous speech ( t a l k i n g at the same time), O'Barr wondered whether such clashes would be viewed as i n d i c a t o r s of r e l a t i v e dominance and acquiesence. Experimental tapes were produced which allowed f o r four d i f f e r e n t conditions: one with no overlapping speech, and three which presented the lawyer,, the witness, or neither speaker as dominant i n terms of persevering when interrupted. In a l l three experimental conditions i n v o l v i n g overlapping speech, the witness was perceived by the subjects as having greater c o n t r o l . In contrast, when an i n t e r p r e t e r i s used, i t would seem, i t i s u n l i k e l y that the much i n t e r r u p t i n g could be done by 136 ei t h e r side, and so the witness could never appear to have whatever p o s i t i v e q u a l i t i e s are a t t r i b u t e d by jurors to witnesses who p a r t i c i p a t e somehow i n in t e r r u p t i o n . By way of recommendations for lawyers, O'Barr o f f e r s some ideas for lawyers when t h e i r witnesses cannot be coached to t e s t i f y i n ways that w i l l enhance the value of t h e i r evidence i n the eyes of the jury. One t a c t i c would be simply to explain to the jury what speech s t y l e the witness has, and how i t might a f f e c t h i s testimony. A second t a c t i c would be for the lawyer to "t r a n s l a t e " the testimony, r e s t a t i n g i t . The researcher had found examples of t h i s i n t h e i r observations of t r i a l s i n North C a r o l i n a : Lawyers often "elevated" the s t y l e of poorly eduacated black and white witnesses by r e s t a t i n g t h e i r testimony i n more standard and formal E n g l i s h . For example, a witness might say, I ai n ' t go no usual job. The lawyer on hearing t h i s might re s t a t e i t as, You don't  have any regular job, and then proceed to the next question (p. 114, footnote 2). This would be impossible to do when an i n t e r p r e t e r i s used, obviously. C o i n c i d e n t a l l y , O'Barr f e e l s that non-English speaking witnesses could o f f e r an analogue for the witness who uses a powerless speech s t y l e i n that, i n both cases, there are "functi o n a l d i f f e r e n c e s i n the language used by the court and the l i t i g a n t , with the d i s t i n c t i o n being one of degree rather that kind" (p. 116). This view would f i t well with the s i t u a t i o n faced by ESL-speakers. There are two more suggestions O'Barr o f f e r s which- are not di r e c t e d to lawyers, but r e l a t e d to courtroom procedures. One p o s s i b i l i t y i s that of a l t e r i n g the standards f o r leading questions. This i s c u r r e n t l y permitted, O'Barr reports, when the judge f e e l s i t i s necessary i n order to ensure fairne s s to the witness. Greater use of 137 leading questions might reduce the d i f f e r e n c e s between powerful and powerless speech s t y l e s . Also, yes/no questions ought to have the same e f f e c t , i t would appear: Since there i s l i t t l e p o s s i b i l i t y of s e t t i n g out on a long narative reply, "fragmented" speakers' r e l a t i v e disadvantage might be.reduced. A somewhat more d i r e c t approach would be to reform the rules of evidence themselves. The rules are designed to ensure the r e l i a b i l i t y of evidence, but t h i s goal cannot be achieved i f factors which are known to a f f e c t j u r i e s ' decisions are ignored. O'Barr frames an issue which could be applied whole to the case of ESL-speakers: A question for the law to consider i n dealing with a l l t h i s i s whether a witness should be held incompetent, for example, i f he or she cannot present testimony i n a s t y l e that w i l l receive an unprejudiced hearing. It would seem that to the extent that speech s t y l e may d i s t r a c t jurors from a r e l a t i v e l y o b j e c t i v e assessment of the f a c t s , the p r i n c i p l e s of equity, i f not c o n s i t i t u t i o n a l law, require that the courts develop a more a c t i v e response to the problem (p. 118). O'Barr a c t u a l l y envisions i n t e r p r e t e r s being used for i n d i v i d u a l s who speak "an unusual s t y l e of English" (see p. 118), complete with o f f i c i a l g u idelines regulating t h e i r uses, as i s done with ordinary court reports i n the American federal court system. This suggestion would be highly appropriate f or ESL-speakers, except there, the simpler solution i s merely to lower the standard for the r i g h t to the assistance of an i n t e r p r e t e r . P r a c t i c a l l y , v i r t u a l l y every ESL-speaker should be presumed to be incapable of speaking i n a way which does not lead to a devaluation of h i s testimony. While only two studies which focused s p e c i f i c a l l y on cross-c u l t u r a l d i f f e r e n c e s i n courtroom testimony were found, the studies are very thoughtful and i l l u m i n a t i n g . F i r s t i s Liberman's (1981) study of 138 A u s t r a l i a n Aboriginal witnesses. Liberman presents a number of exerpts from t r i a l t r a n s c r i p t s which show that Aborigines face d i f f i c u l t i e s r e l a t e d to t h e i r c u l t u r a l p r a c t i c e s regarding communication. He describes two important features of Ab o r i g i n a l discourse which can a f f e c t t r i a l outcomes. One i s that . . . [individuals do not assert themselves or t h e i r points of view too vigorously, but maintain a s e l f -deprecatory manner which emphasizes the importance of group cohesiveness over i n d i v i d u a l aims. Competitive arguments are discouraged, and Aboriginies avoid d i r e c t l y c o n t r a d i c t i n g others i n order to prevent t h e i r embarrassment. Decisions are made by a gradual consenses whichh•emerges from a round-the-rally exchange of comments during which p a r t i c i p a n t s do not express personal views but make more or les s anonymous contributions (they speak as members not as ind i v i d u a l s ) that o b j e c t i f y the general i n c l i n a t i o n s of the group. These consensual exchanges employ a great deal of r e p e t i t i o n of previous utterances and als o phrases of a f f i r m a t i o n ("yes," etc.) which f a c i l i t a t e the congenial ambience they d e s i r e ... (p. 248). Norms and values of t h i s sort are undoubtedly found i n ethnic groups l i v i n g i n Canada, too, of course. A second important d i f f e r e n c e found by Liberman i s that ... " [ e ] i t h e r - o r " choice questions are almost unknown i n Aboriginal discourse, and answers to such questions usually r e f e r to the l a s t a l t e r n a t i v e proferred. The Abori g i n a l court t r a n s l a t o r Lester has reported that i f A b o r i ginal people are asked, "did you or d i d you not do that," they w i l l answer "yes," meaning, "Yes, I di d not do i t " (p. 248). This echoes the expert testimony given i n R. v. Stewart (1972), which was discussed e a r l i e r , and shows that e t h n i c i t y can lead to the same phenomenon. Would ESl-speaker status e l i c i t foreigner t a l k which includes a greater proportion of yes/no questions, exacerbating these communication problems? Liberman states that i n a d d i t i o n , Aborigines are a l s o unfamiliar 139 not only with the fundamental rules of j u d i c i a l proceedings (such as the r i g h t against s e l f - i n c r i m i n a t i o n ) but a l s o with the necessity to make one's present testimony consistent with one's p r i o r testimony, much as Wodak found (see above). Liberman c i t e s a Darwin, A u s t r a l i a magistrate who notes that ... Aboriginal people t e l l t h e i r s t o r i e s honestly under examination-in-chief but ... they contradict themselves under the pressure of cross-examination, not understanding i t s functions. Anglo-Australians* r e a l i z e that any modifications must be c a r e f u l l y reworded so that they remain consistent at l e a s t with the formal structure of an o r i g i n a l utterance (p. 254). Another problematic d i f f e r e n c e noted by Liberman has s i g n i f i c a n t implications f or the equality p r o v i s i o n i n the Charter: Aborigines frequently become confused when they are t o l d that they must t e l l the t r u t h and then almost i n the same breath t o l d that they need not say anything which i s s e l f - i n c r i m i n a t i n g , p a r t i c u l a r l y when the invocation to t e l l the t r u t h comes a f t e r a lengthy ordeal about the meaning and importance of taking the oath (p. 251). Other ethnic groups' communication expectations have not been studied i n t h i s way, but they could be. C e r t a i n l y an accused does not receive the equal p r o t e c t i o n of the law i f he i s unequally cognizant of how the law operates. A second very i n t e r e s t i n g study of c r o s s - c u l t u r a l d i f f e r e n c e s which cause trouble i n l e g a l proceedings was conducted by Gumperz (1982). He presents a f a s c i n a t i n g a n a l y s i s of miscommunication i n the case of a F i l i p i n o doctor i n the American navy who had been accused of perjury due to apparently inconsistent statements made by him on two d i f f e r e n t occasions. Gumperz shows that the charge of perjury can be explained by c u l t u r a l d i f f e r e n c e s i n what he c a l l s c o n t e x t u a l i z a t i o n conventions, and by first-langugee in t e r f e r e n c e . 140 In the following example, Gumperz explains, i n the doctor's native language, Aklan, the communication d i f f i c u l t y which arose i n the courtroom testimony i n English would not have arisen, since Aklan would place a p a r t i c u l a r temporal meaning on the word which causes the problem i n the exchange, "sunken": Q: Did you check to determine i f dehydration was present? A: Yes. Q: What steps d i d you take to determine that? If i t was present or absent? A: When the c h i l d came, I i n i t i a l l y examined the patient and I noted the moistness of the tongue, sunken eyes, the skin color, and everything was okay. Q: Are you suggesting that there were no sunken eyes? A: No. Q: I think we better slow down a l i t t l e b i t more and make sure the record ... d i d you observe sunken eyes? A: NO (p. 176). The doctor's reply, Gumperz observes, i s ambiguous. It could mean, "No, that's not what I'm suggesting," or i t could mean, "No, there were no symptoms of sunken eyes." By comparing English-speakers 1 and Aklan- or Tagalog-speakers' i n t e r p r e t a t i o n s of s i m i l a r interchanges that had been problematic i n the testimony, Gumperz i s able to show that misinterpretations of meaning or in t e n t i o n can occur even when an i n d i v i d u a l speaks English r e l a t i v e l y w e l l . It i s s i g n i f i c a n t that such miscommunication seems to increase i n s i t u a t i o n s of stress, or where unusual language forms are involved. Gumperz concludes: 141 We have demonstrated that many aspects of Dr. A's behavior can be explained by h i s l i n g u i s t i c and c u l t u r a l background. The features [of his speech] are automatic and not r e a d i l y subject to conscious c o n t r o l . They do not a f f e c t h i s written performance, yet they are l i k e l y to recur whenever he i s faced with complex o r a l communication tasks, so that, i n spite of the f a c t that he speaks English well, he i s more l i k e l y than native speakers of English to be misunderstood i n such s i t u a t i o n s . This does not of course c o n s t i t u t e proof that he was a c t u a l l y misunderstood. In the r e l a t i v e l y informal [ e a r l i e r ] Navy hearing where he was represented by h i s own counsel and questions were rephrased whenever problems arose, there c l e a r l y was no miscommunication. On the contrary, h i s testimony was quite e f f e c t i v e . But given the nature of the FBI interview, given the f a c t that only 15 minutes were a l l o t t e d to obtaining the information, that part of the meeting was taken up with questions about background, and that there was hardly any time at a l l to go i n t o d e t a i l s , check out i n i t i a l impressions, and c l e a r up possible misunderstandings, the l i k e l i h o o d that misunderstanding d i d occur i s very high (p. 195). In general, of course, whenever such misunderstandings occur regarding what was said during i n t e r r o g a t i o n , i t appears that the witness i s now l y i n g . P r a c t i t i o n e r s ' Views Rec a l l i n g that few i n s i g h t s were contributed by p r a c t i t i o n e r s i n the studies conducted by Bennett and Feldman, and O'Barr, whatever we learn from the respondent's comments i n t h i s study should be viewed as something of a bonus. The bulk of t h e i r remarks concerning courtroom i n t e r a c t i o n f e l l under the heading of court i n t e r p r e t e r s ' performance, yet the interviewees d i d have some observations to o f f e r on r e l a t e d matters, some of which , we w i l l see l a t e r , bear d i r e c t l y on one of the l e g a l issues i n court i n t e r p r e t a t i o n , v i z . , the need to t r a n s l a t e everything which i s said i n the courtroom for the accused. It appears from the interviews that c e r t a i n a t t i t u d e s toward 142 i n t e r p r e t a t i o n e x i s t which run counter to the l e g a l system's o f f i c i a l r u l e s . Several respondents mentioned the fact that both judges and lawyers prefer to avoid i n t e r p r e t a t i o n because of the extra time required. The court i n t e r p r e t e r t r a i n e r said that lawyers "always f e e l that the i n t r e p r e t e r ' s a nuisance" because " i t slows down the proceedings and makes i t d i f f i c u l t to get your answers." The p r o v i n c i a l court judge, too, remarked that people i n the j u s t i c e system considered interpreted t r i a l s as something of "a nuisance." The preference to do without i n t e r p r e t a t i o n may grow i n t o pressure to dispense with i t . This was described by one of the b i l i n g u a l lawyers as "unexpressed pressure, i m p l i c i t pressure," to proceed without in t e r p r e t e r s i f p o s s i b l e . Another lawyer stated that " e s p e c i a l l y i f the person i s a permanent resident or a Canadian, the immigration o f f i c i a l s get quite put o f f i f they don't speak English w e l l . " (His s o l u t i o n i s to t r y to have the c l i e n t go through the hearing i n English, but with an i n t e r p r e t e r a v a i l a b l e on a standby basis.) A t y p i c a l way for a judge to express t h i s preference/pressure, one of the b i l i n g u a l lawyers stated, would be: "This man has been here for the l a s t ten years, he must be able to speak E n g l i s h — l e t ' s just proceed and see what he says." As a r e s u l t , the lawyer observed, "the person may understand enough to hang himself," which he had seen happen more than once. It i s p o s s i b l e , however, that p a r t i e s have been i n Canada a long time but s t i l l do need i n t e r p r e t a t i o n . A probation o f f i c e r r e f e r r e d to the case of a Spanish-speaking immigrant who had been i n Canada for ten years but whose Engl i s h was so inadequate that he had pleaded g u i l t y to a s h o p l i f t i n g charge without r e a l i z i n g what he was doing; he a l s o d i d not understand, l a t e r , what probation was. A counselor-interpreter said 143 that i t i s not uncommon to f i n d Japanese s i x t y years of age or older who have been i n Canada ten years or more and s t i l l have very minimal English a b i l i t y . Another probation o f f i c e r described a South Asian who claimed not to have understood that he had pleaded g u i l t y to a charge i n court. This i n d i v i d u a l , too, had been i n Canada about ten years, and had ... led an i s o l o a t e d l i f e and remained within the East Indian community, mostly spoke Hindi, a l l h i s s o c i a l a c t i v i t i e s were within that, and most of the jobs he got were through East Indian employers and not formalized a p p l i c a t i o n s . A t h i r d probation o f f i c e r mentioned a case i n v o l v i n g a serious offense, where there were two co-defendants. One had been i n Canada only a few months; the other, fourteen years. In passing sentence, the judge noted the length of time the l a t t e r had been i n Canada, and a imposed lengthier sentence on him. There i s nothing to prevent an accused from attempting to misrepresent h i s need for the assistance of an i n t e r p r e t e r . Actual fluency i s never tested i n anything resembling a serious manner. A probation o f f i c e r expressed h i s concern with t h i s , but d i d not l i n k the request for an i n t e r p r e t e r i n court with the sp e c i a l l i n g u i s t i c demands made of an accused i n a cri m i n a l t r i a l . Yet, a b i l i n g u a l lawyer explained, there i s a c r e d i b i l i t y problem for a defendant who, the evidence suggests, communicated i n English on a previous occasion: You would have an accused i n court who's made a statement to the p o l i c e and that statement i s l e t i n on the v o i r d i r e and the judge refuses to believe that your c l i e n t didn't r e a l l y understand what was being said, because the p o l i c e o f f i c e r takes the stand and says, "Oh, he understood me; he gave me a l l the answers I wanted." And what they r e a l l y don't understand i s that t h i s chap who may have given the statement probably misunderstood the question and didn't understand the implications of the question or 144 [took] the question at i t s face value, and gave the answers to the question that he perceived i t to be, rather than what the question was. The other b i l i n g u a l lawyer observed that t h i s problem involved the existence of two l e v e l s of communication, one which was s u f f i c i e n t to have an elementary conversation with an i n v e s t i g a t i n g o f f i c e r , and the other which i s necessary to understand courtroom English: [Y]ou've r e a l l y caught i n a dilemma about using an in t e r p r e t e r because the police'11 already know that they de a l t with t h i s person i n English, and they make a b i g case about the f a c t that, "I spoke to the person for h a l f an hour," or the immigration o f f i c e r knew that he spoke to the person and some l e v e l of communication was going on. He f e l t that i t was " r e a l l y r i s k i n g your c l i e n t ' s c r e d i b i l i t y " to use the i n t e r p r e t e r i n such cases. The f i r s t b i l i n g u a l lawyer a l s o said that the passage of time added to the problem—the c l i e n t obviously has had time to think about the event, and now apparently he i s t r y i n g to create an excuse by g i v i n g exculpatory testimony. Once t h i s type of damage to a c l i e n t ' s c r e d i b i l i t y has occurred, he said, i t ' s very, very d i f f i c u l t to undo i t because the courts then don't be l i e v e you." He added that, i n h i s opinion, there was a general suspicion on the part of the court toward people who do not speak English. The hypothesis i s that such i n d i v i d u a l s a c t u a l l y do understand English, but i n s i s t on i n t e r p r e t a t i o n because i t ... gives them time to think and frame t h e i r answers. I've had many lawyers t e l l me that, and many judges t e l l me that. Not i n court, but ... n o n - j u d i c i a l circumstances. This, he observed, runs counter to the presumption of innocence! He explained that the statement of the p o l i c e o f f i c e r regarding the suspect's comprehension of English during the i n v e s t i g a t i o n w i l l be admitted wihout any a d d i t i o n a l proof, a f t e r which the accused i s placed 145 i n the p o s i t i o n of having to rebut that evidence. He observed: [ l ] f you say you don't understand, I mean, that's taken with a grain of s a l t . Nobody's going to b e l i e v e you u n t i l i t ' s proven that you r e a l l y don't understand. You're not given the benefit of the doubt, and you shold be able to explain why you said what you s a i d . The courts are readier to b e l i e v e that you understand than to believe that you don't understand. In t h i s respect, i n that the accused i n e f f e c t i s not believed without a d d i t i o n a l proof, while the i n v e s t i g a t i n g o f f i c e r i s , "you are placed i n the p o s i t i o n where, at least on.that sub-issue, you are being considered ' g u i l t y . "' For the witness or the accused, the biggest danger may be that of overestimating one's own English a b i l i t y . Even for non-professional i n t e r p r e t e r s , there i s a danger, as an immigrant services worker explained. It i s p o s s i b l e to ... end up saying things that you don't r e a l l y mean, and ... [things] come out i n a way that, they sound more harsh, and very offensive at times, and even the i n t e r p r e t e r may not mean i t that way, so the impression that's created by the [ c l i e n t or the i n t e r p r e t e r ] ... tends to be wrong, and so the whole future or whatever that p a r t i c u l a r work that -needs to be done on that p a r t i c u l a r project, does not come out as well as i t should. An example she o f f e r e d involved an interview with a court counselor. The c l i e n t thought he spoke well, and " t r i e d to handle the communication by g i v i n g d e f i n i t e yes-or-no answers and f e l t secure when he was doing that." However, when the worker explained things to him i n h i s native language, "then he r e a l i z e d that there was a l o t more to i t . " After the explanation, h i s answers became both longer and more i n d i c a t i v e of understanding on h i s part. It was f a i r l y widely agreed that many i n d i v i d u a l s do not l i k e to admit that they need an i n t e r p r e t e r , e s p e c i a l l y i f they have been i n 146 Canada for a long time. If the judge asks, "Do you understand?", they w i l l answer a f f i r m a t i v e l y , the court i n t e r p r e t e r t r a i n e r said, but l a t e r " i t becomes apparent that they don't." Of course they thereby put themselves i n jeopardy at t r i a l . A court i n t e r p r e t e r explained that there are ... people who give [the] i n i t i a l impression that they do have enough English and they can conduct t h e i r own defense q u i t e s u f f i c i e n t l y , and then they f i n d i n the middle of a t r i a l ... that there i s not enough. She said she had spoken to many such i n d i v i d u a l s afterwards, and they had said, "Oh, but i f I knew that I can have an i n t e r p r e t e r , I would have. I didn't know." You know, "I couldn't express myself, I couldn't say t h i s , I couldn't say that The concept of " f a l s e fluency," as i t might be termed , was encountered several times i n the interviews. The county court judge r e f e r r e d to ESL-speakers who apparently do not need an inte r p r e t e r as a "middle, gray area." T y p i c a l l y , he said, they have been i n Canada for ten to f i f t e e n years, and had "a p r e t t y good understanding, working knowledge of En g l i s h . " They could go downtown and go shopping, and hold a job with no problem, "but once they get i n t o a courtroom, they may not understand a l l of the language" used there. A court int e r p r e t e r r e f e r r e d to such i n d i v i d u a l s as having "a medium knowledge of English" which serves them well i n d a i l y l i f e ; but i n court, she said, "because of t h e i r nervousness, ... they lose that a b i l i t y to use a second language." A few viewpoints r e l a t i n g to the mechanism through which the court may be misled were offe r e d by the respondents who seemed to have the best working knowledge of these prolbems. A b i l i n g u a l lawyer described 147 h i s c l i e n t s as tending to understand Eng l i s h better than they could speak i t , which would perhaps lead a court to overestimate the person's a b i l i t y to express himself f u l l y i n court. S t i l l , i t i s t h e i r own s e l f -estimate which i s perhaps most dangerous: There are quite a few of them, i . e . , c l i e n t s , who understand what's going on, at l e a s t they think they do, and they understand perhaps over ninety percent of what's being said. They miss words here and there and they don't get the nuances, a l l of the nuances of various sentences or structures or the idioms. But they get the j i s t of what's being said and they bel i e v e that they understand. And that misleads the courts and the bar i n t o thinking that these i n d i v i d u a l s understand what's going on. Pride, mentioned e a r l i e r , i s another f a c t o r . Some of these i n d i v i d u a l s are often "quite understandable," a court i n t e r p r e t e r explained. If asked, they say, "Well, yes, I speak En g l i s h , " he said, and "that's the end of i t , " even though such a person, "although he sounds good, he sounds f l u e n t , r e a l l y does not understand probably more than s i x t y , seventy percent that's being s a i d . " Such a person may appear to be more flu e n t than he a c t u a l l y i s because, he continued, ESL-speakers " l a t c h on to expressions, and they w i l l just repeat them, because they know they sound good." While witnesses may understand Eng l i s h better that they can speak i t , a b i l i n g u a l lawyer remarked that, i n the case of someone who had a a basic l e v e l of communicative a b i l i t y i n English, at some point the judge or prosecutor might say something l i k e , "Look, t h i s person can speak as well as anybody with grade 7—what are you t r y i n g to p u l l on me?" This problem might be compounded by the fa c t that the c l i e n t had previously been interviewed and asked various questions which were not beyond his a b i l i t y to discuss, e.g., name and address, occupation, or marital status. There are also cases where the judge thinks he has understood 148 what the witness meant, but d i d not, one court i n t e r p r e t e r s a i d . The f a c t that court findings have to be j u s t i f i a b l e on the face of the record ( i . e . on the t r a n s c r i p t ) , a b i l i n g u a l lawyer pointed out, means that r e p l i e s tend to be taken at face value. The judge, he observed, "has to believe that you said what you meant," and while he may provide an opportunity for the witness to c l a r i f y h i s remarks, he "can't think that i t means something else, because on appeal h i s d e c i s i o n then becomes unsupportable, or l e a s t that's the way he's been trained to think." As stated much e a r l i e r , neither the Charter nor any other statute o f f e r s e x p l i c i t guidelines f or determining what l e v e l of understanding of E n g l i s h i s required on the witness's or accused's part. There are at l e a s t two questions: What l e v e l of understanding removes the r i g h t to an i n t e r p r e t e r , and what l e v e l must be attained before s. 15 can be said to have been s a t i s f i e d ? A b i l i n g u a l lawyer, asked whether one hundred percent comprehension was the p r a c t i c a l goal i n courtroom i n t e r p r e t a t i o n , stated: Well, I get the f e e l i n g from the c r i m i n a l courts that [a l e s s e r standard] i s the ... r u l e of thumb they go by, and they t r y to get the j i s t of the evidence, as they say, i n t o these cases. He thought that the seriousness of the offense would make a d i f f e r e n c e , ' though. Interpretation would have to be more "thorough" i n c a p i t a l cases, f o r example, whereas i n more minor cases, he opined, both the courts and the bar have the view that " i t ' s a l r i g h t as long as you get the j i s t of i t . " It might seem self-e v i d e n t that the accused i s not i n a very good p o s i t i o n to decide how adequate h i s l e v e l of understanding i s when he himself i s not l e g a l l y t r a i n e d and i s not a native speaker of the language. However, i t i s common i n both c r i m i n a l proceedings and 149 immigration hearings to give the person f a c i n g charges the r e s p o n s i b i l i t y for deciding. The immigration adjudicator r e l a t e d that the subject of the inquiry i s cautioned as follows: If at any time you don't f e e l you can adequately explain yourself i n English, ask f o r the int e r p r e t e r to i n t e r p r e t for you, or i f at any time you don't understand what has been said i n the room, ask that that i t be interpreted. It seems doubtful, for one thing, that the person would use the same c r i t e r i o n with respect to every type of communication i n the courtroom or hearing room, which then places him i n the p o s i t i o n of al s o having to decide the importance of various utterances. A d i f f e r e n t view was of f e r e d by the p r o v i n c i a l court judge regarding the type of cases t r i e d i n p r o v i n c i a l court. Sometimes comprehension i s not considered a l l that important: The defendant may be asked questions by h i s lawyer about the evidence, but u s u a l l y not. Usually the lawyer i s conducting the case, so that the lawyer i s going to be the most concerned, I think, about understanding what's going on. You know, i n many cases i t ' s not a question of what the accused i s going to say; i t ' s whether the Crown can lead the evidence to prove i t beyond a reasonable doubt. This i s of course a p r a c t i c a l o b s e r v a t i o n — t h i s judge would not maintain for a minute that such was the way the law works best. He repeated, " i n a l o t of cases, the r e s u l t doesn't depend on anything the accused does," because he may not t e s t i f y . This issue may be lin k e d to another consideration which, s t r i c t l y speaking, i s i r r e l e v a n t . One of the probation o f f i c e r s f e l t that when the defense was not very strong or the lawyer cared very l i t t l e about the case, a g u i l t y plea may be entered because of the defendant's language problems: I know ... from experience that I've seen lawyers 150 treat people l i k e t h i s ... and i f they're only paying eight hundred d o l l a r s or a thousand d o l l a r s and the case i s n ' t that strong ... a g u i l t y plea may be entered just due to the f a c t that to put t h i s fellow on the witness stand and ... have him go through his testimony or be asked questions, and have to be asked slowly and h i s answers have to be l i s t e n e d to very c a r e f u l l y by the prosecutor and the judge, sometimes i t ' s just too much e f f o r t and i t ' s not worth i t . In other words, the fa c t that the accused does not t e s t i f y may r e s u l t from extraneous considerations, and so may not be a good reason to pay les s attention to the accused's comprehension problems. Also, the observation of the probation o f f i c e r implies that whether or not an i n t e r p r e t e r i s used, there are problems i n the eyes of p r a c t i t i o n e r s . The choice i s between the extra time required for i n t e r p r e t a t i o n , and the undoubted' losses i n t r a n s l a t i o n ; and the f r u s t r a t i o n of t r y i n g to understand a non-native speaker of Eng l i s h (and the undoubted losses i n h i s comprehension of others' testimony). On the other hand, the probation o f f i c e r f e l t that an ESL-speaker receives the sp e c i a l a t t e n t i o n necessary when i t comes to speaking to sentence: "[P]eople do take the time to l i s t e n to them and i t i s n ' t assumed that they would l i e at that stage." One reason, he suspected, was that such a person "doesn't know the language well enough to l i e " anyway. There i s another way that g u i l t y pleas and comprehension may be i n t e r r e l a t e d . Native Canadian Indians are believed to plead g u i l t y with unusual frequency. The administrator of a courtworker program observed that i f a native person had no assistance, t y p i c a l l y he would walk i n t o the courtroom and plead g u i l t y just to get i t over with: He doesn't want to come back and face the court again, because he's by himself, he has to go through the process of getting [and] f i l l i n g out a l e g a l a i d form . . . . [ Y ] O U have to f i l l out three forms now ... but i f you have the assistance of another native person i n there to help you, then i t ' s a d i f f e r e n t story .... 151 The i m p l i c a t i o n i s that c u l t u r a l d i f f e r e n c e s i n t h i s type of communication s i t u a t i o n place some i n d i v i d u a l s at a comparative disadvantage. In general, the county court judge observed, the langauge used i n the courtroom i s not modified to accommodate the l i n g u i s t i c l i m i t a t i o n s of the ESL-speaker who i s not using an i n t e r p r e t e r (though he himself makes a p r a c t i c e of speaking more slowly i n such cases, he said, and makes comprehension checks from time to time). He described the ESL-speaker as representing the type of accused where "I think you have to be concerned." It i s a problem, however, knowing just which words might require further explanation for the b e n e f i t of an ESL-speaker. The immigration adjudicator said that i f i t i s suspected that the court i n t e r p r e t e r has not understood what was meant(l). An explanation w i l l be offered, but again we do not know how t h i s d e c i s i o n i s made. For instance, some questions are t o t a l l y formulaic, and adjudicators are accustomed to repeating these questions over and over, even though they contain many ordinary words which are used i n a t e c h n i c a l sense (e.g., "claim" to be a "permanent res i d e n t " of Canada). One lawyer stated that he makes a p r a c t i c e of b r i e f i n g h i s c l i e n t s on the key questions before the hearing, f o r just t h i s reason. An i n t e r e s t i n g observation regarding comprehension i n the courtroom was made by the monolingual immigration lawyer interviewed. When the c l i e n t speaks some English, but uses an i n t e r p r e t e r , he a c t u a l l y receives two sources of information. He can understand a l l or some of the o r i g i n a l communication i n English and then receives a translated v e r s i o n . The i n s t i n c t i v e response, he said, i s to reply to the o r i g i n a l English question. 152 ... even though they might not understand i t well enough .... [ l ] t ' s very d i f f i c u l t to get people who are ... twenty percent, t h i r t y percent p r o f i c i e n t i n English ... to just t r y to turn that o f f and l i s t e n only to the t r a n s l a t i o n and to respond only i n t h e i r own language, because t h e y ' l l attempt to respond i n English. This contrasts somewhat with the suspicious view of witnesses who use an i n t e r p r e t e r i n order to gain extra time i n which to formulate an untruthful response. Most of the respondents seemed to have thought about t h e i r problem of how to detect lack of comprehension i n the courtroom. Again, i n t u i t i o n seemed to be the key. The immigration adjudicator r e l a t e d that the test would be that the i n d i v i d u a l i s "obviously t r y i n g but things aren't working." In contrast, i f the witness's responses can be viewed as making sense one way or another, comprehension would be assumed: If they're g i v i n g you what sound l i k e reasonable answers to the questions that they're being asked, then one has to assume that they're understanding what they're being asked, or t h e i r answers wouldn't be on point. Another assumption i s that the person understands the language as well as he seems to speak i t (the opposite assumption was discussed above). A court i n t e r p r e t e r with extensive experience stated: If a person i s understandable or makes himself understood, and quite often [his English i s ] very broken, well, they [ i . e . , the court] w i l l accept i t , and what r e a l l y amazes me i s that even though a person i s speaking very broken English, they w i l l quite often accept that or prefer to have that testimony because i t ' s d i r e c t . Two respondents mentioned observing the i n d i v i d u a l ' s face as a method of detecting lack of comprehension, but nothing more s p e c i f i c emerged from the interviews. An i n t e r e s t i n g counterpoint was off e r e d by the 153 p r o v i n c i a l court judge, who said he could not r e c a l l any s i t u a t i o n s "where something a person has done or said has made me question whether or not he understands what's being done." One l a s t area where respondent made some valuable observations i s that of t r a n s l a t i n g everything which i s said i n the courtroom. One b i l i n g u a l lawyer f e l t that some lawyers or some judges are simply "not that s e n s i t i v e to the issu e " of t r a n s l a t i n g everything, and f a i l to make i t clear to the i n t e r p r e t e r that every word uttered i n the presence of the accused has to be t r a n s l a t e d f o r him. (Note the assumption that court i n t e r p r e t e r s do not necessarily, know what to do.) In ad d i t i o n , he suggested that the i n t e r p r e t e r may bring c e r t a i n a t t i t u d e s to the s i t u a t i o n : I think some of the i n t e r p r e t e r s that do attend various cases have ... a very e l i t i s t a t t i t u d e — n o t everything has to be t o l d to the accused. The accused doesn't have to know everything that's going on. They sometimes begin to play judges and lawyers and may not inte r p r e t e r everything that's said to the accused and at other times i t may be simply a lack of caution from the judge to the i n t e r p r e t e r . He added that the focus i n the courtroom on the lawyers and the judge may d e f l e c t a t t e n t i o n away from the accused, with the r e s u l t that he i s ignored: I think i n the courtroom judges and lawyers do get c a r r i e d away i n the heat of the moment and that's one reason why ... the witnesses or the c l i e n t s or the accused who have Engl i s h as a second language or don't understand the language properly get l e f t out of the whole show and they're simply there ... as a part separate and apart from everything else that's going on, rather than a part of the whole. The other b i l i n g u a l lawyer stated simply that, i n the p r o v i n c i a l courts, ... there's no concern at a l l f o r t r a n s l a t i n g a l l of the process. I mean they don't stop at anything; at the best the i n t e r p r e t e r q u i e t l y sort of gets to whisper i n the defendant's ear what i s going on, and 154 whether that's r i g h t or wrong, there's never any way of proving i t . So the concern i n both [criminal t r i a l s and immigration hearings] i s always with the English version and not whether the question that's being asked or the evidence or the process that's going on i s being properly explained i n that person's language. The court i n t e r p r e t e r t r a i n e r , too, mentioned the tendency to "ignore" the accused. Courtroom personnel, e s p e c i a l l y the lawyers, have d i f f i c u l t y i n slowing down to accommodate the l i n g u i s t i c l i m i t a t i o n s of the accused. The immigration adjudicator also noted that i t i s d i f f i c u l t to get a lawyer to slow down "when he's got up a head of steam and he wants to make a point." It i s rare that simultaneous i n t e r p r e t a t i o n can be performed i n that s i t u a t i o n , the adjudicator s a i d . Another, p o s s i b l y more important point the adjudicator made i s that when simultaneous i n t e r p r e t a t i o n i s performed i n an immigration hearing, ... the court reporters complain that t h i s i s coming over the top of everything else and i t ' s making i t d i f f i c u l t for them to hear what's being said by the p r i n c i p a l speaker. But the biggest problem i s the lawyers. In one instance, the lawyer had been stopped f i v e times because he was speaking too q u i c k l y . He was t o l d , "You absolutely have to wait for the int e r p r e t e r to i n t e r p r e t what you're saying or i t ' s of no value." The lawyer r e p l i e d , "Well, my c l i e n t doesn't need to hear t h i s . " (The adjudicator, f o r t u a n t e l y , disagreed.) The communication which the accused i s least l i k e l y to recieve a t r a n s l a t i o n of i s that between judge and lawyer. The county court judge asked: How can you expect an int e r p r e t e r to in t e r p r e t back to the accused comments made to the judge and from the counsel back to the judge and from the judge to the 155 counsel, that deal with points of law? I think that u s u a l l y what they do i s , they just s i t there. This respondent, too, observed that the lawyers and the judge do not want to slow down and wait for the i n t e r p r e t a t i o n , e s p e c i a l l y on points of law. The accused, I'd say, p r a c t i c a l l y speaking, ... i s forgotten about at that time. As a matter of act, most other accuseds don't understand i t i n any event, and, you know, sometimes y o u ' l l f i n d that the accused only becomes i n c i d e n t a l i n cases, period. The l a s t i l l u s t r a t i o n of problems i n t r a n s l a t i n g everything for the accused i s one which never should have transpired. A court i n t e r p r e t e r described a case he had observed where, a f t e r the Crown witnesses had t e s t i f i e d , the i n t e r p r e t e r l e f t . The respondent explained: The court adminstration quite often w i l l just pay f o r the i n t e r p r e t e r when required for the Crown 1s witnesses .... They f e l t that they didn't want to pay, or they were not obligated to pay for [that] .... [T]he accused would not have an i n t e r p r e t e r because the court administrator f e l t that he didn't want to pay the funds ... for that .... He only needed an in t e r p r e t e r f o r the Crown's witnesses. With the coming of the Charter, surely we can expect some changes and some r e g u l a r i t y i n procedures in v o l v i n g i n t e r p r e t a t i o n . The Legal Perspective As should be c l e a r by t h i s point, the courts r e s t r i c t themselves to a f a i r l y l i m i t e d , standard set of considerations i n addressing issues that might be implied by c u l t u r a l and l i n g u i s t i c d i f f e r e n c e s . In the present study, there were no cases located which d e a l t d i r e c t l y with c u l t u r a l d i f f e r e n c e s i n communication s t y l e ; i n f a c t , none touched upon i n t e r a c t i o n a l aspects of courtroom communciation at a l l . The issues which do receive a t t e n t i o n from time to time are those which r e l a t e to 156 the question of when t r a n s l a t i o n i s needed, when the r i g h t to i n t e r p r e t a t i o n has been waited, and whether everything needs to be tra n s l a t e d for the accused. R. v. Reale (1973) dealt with the f a i l u r e to have every part of the t r i a l t r a n s l a t e d . The t r i a l judge had decided that simultaneous t r a n s l a t i o n of the rather lengthy judge's charge to the jury might " d i s t r a c t " the jury. The Ontario Court of Appeal, i n a judgement l a t e r affirmed by the Supreme Court of Canada i n R. v. Reale (1975), r e f e r r e d to the Canadian B i l l of Rights' guarantee of the equal protection of the law and held that rendering an accused unable to understand any part of the t r i a l by r e f u s i n g to provide t r a n s l a t i o n v i o l a t e d h i s r i g h t s , since he could not then be said to stand "on the same fo o t i n g or i n an equal p o s i t i o n with respect to the a p p l i c a t i o n of the c r i m i n a l law as others" (1973, pp. 348-349). Such arguments would be even stronger now that s. 15 of the Charter has taken e f f e c t . Several other sub-issues have a r i s e n i n the cases., In R. v. Turkiewicz, Barrow and MacNamara (1979), a French-speaking witness asked for i n t e r p r e t a t i o n assistance, a f t e r which the judge spoke to her i n French. The Ontario Court of Appeal thought not only that a judge should not become an i n t e r p r e t e r , but noted that "what was said was apparently not understood by counsel and the accused—and perhaps the jury" (per Zuber, J.A., at p. 414). Another case where an unusual event occurred was R. v. Sadjade (1982), where the judge refused to have an i n t e r p r e t e r provided for the Crown's evidence, which would be given i n French, because the accused's lawyer could t r a n s l a t e f or him. Crown counsel agreed to t r a n s l a t e a f t e r the defense lawyer refused, but that, too, was unacceptable. The Quebec Court of Appeal upheld the conviction 157 that r e s u l t e d f or these reasons; No notice of the need for an i n t e r p r e t e r had been given u n t i l the t r i a l was ready to begin; Crown counsel had o f f e r e d to t r a n s l a t e ; and there were "only" 22 pages of evidence to be t r a n s l a t e d . On appeal to the Supreme Court of Canada, the d e c i s i o n was overturned: see R. v. Sadjade (1983). A somewhat d i f f e r e n t approach was taken by the t r i a l judge i n R. v. Lapierre (1980). Having been informed that an i n t e r p r e t e r was needed, the judge recessed the court, suggesting that someone might speak to the accused regarding h i s r i g h t to request a t r i a l i n his native language, French. Apparently an i n t e r p r e t e r was not sought at a l l . The c o n v i c t i o n f or tax evasion which ensued was reviewed i n Ontario D i s t r i c t Court, where Lou k i d e l i s , D.C.J, pointed that the f a i l u r e to t r a n s l a t e the charge had not been so serious because the accused d i d know about i t before the t r i a l . A s i m i l a r "relaxed" view of i n t e r p r e t a t i o n was displayed i n one of the very few c i v i l cases which turned up i n the o r i g i n a l computer search of reported cases, Brochu v. Tanguay (1982). A francophone appealed against a jdugement made under the Saskatchewan Children of Unmarried Parents Act whereby he was adjudged to be the father of two infant c h i l d e r n and ordered to contribute to t h e i r maintenance. One of the grounds of the appeal l a t e r was that, though his lawyer had advised the t r i a l judge that he d i d not speak English very w e l l , the accused had not been provided with an i n t e r p r e t e r . Wimmer, J . r u l e d that there was no o b l i g a t i o n upon a court to provide i n t e r p r e t a t i o n f o r a l i t i g a n t i n c i v i l proceedings. The Court of Queen's Bench upheld t h i s , noting that ... the t r i a l judge made every e f f o r t to assure that Brochu was able to s u b s t a n t i a l l y understand the nature of the evidence presented and no more was required of her, e s p e c i a l l y when Brochu was represented by counsel 158 competent i n both languages (p. 121; emphasis added). The suggestion that counsel should a l s o serve as i n t e r p r e t e r was not elaborated on. In Brochu, the t r i a l judge had r e l i e d on an English c i v i l case, Hartely v. Fuld (1965) where a defendant charged with fraud could not a f f o r d to pay for an i n t e r p r e t e r . The Eng l i s h judge drew a d i s t i n c t i o n between c i v i l and criminal cases i n that i n the former, i t ' s a matter of the p a r t i e s — " t h e y need not f i g h t " (p. 655); he admitted, however, that i n the fraud case the charges were grave and bore "a strong family resemblance to criminal charges" (p. 655). The judge suggested that there was r a r e l y any need i n the ordinary case for a l l the evidence to be t r a n s l a t e d as i t was given. It would be expensive and time-consuming. In addition, he noted, l e g a l a i d might p o s s i b l y be a v a i l a b l e , i n which event ... the mere fac t that evidence would have been given which Herr Saueracker w i l l not have understood w i l l not matter very much because there w i l l be a v a i l a b l e a t r a n s c r i p t of each day's evidence (pp. 656-657). This l i n e of thinking i s p o t e n t i a l l y troublesome, implying as i t does that only when i t i s the government that places someone's property or l i b e r t y i n jeopardy i s there i s a r i g h t to f r e e i n t e r p r e t a t i o n . The f a i l u r e of the Charter to include t h i s f a c t o r i n the s. 14 r i g h t could lead to d i s c r i m i n a t i o n or oppression. Two immigration cases can also be noted here. In Re Weber and Minist e r of Manpower and Immigration (1976), the issue was s p e c i f i c a l l y whether every s i n g l e thing that happened at the immigration inqui r y had to be t r a n s l a t e d f or the person concerned. At the hearing, the testimony of a witness c a l l e d by the person concerned herself had not been t r a n s l a t e d ; instead, a summary was provided. The Federal Court of 159 Appeal d i d set aside the deportation order, but d i d not ru l e on the l e g a l e f f e c t of the f a i l u r e to t r a n s l a t e one exhcange between the lawyer and the adjudicator, so t h i s could be argued to be a permitted exception to the translate-everything r u l e . U r e i , J . , for the court d i d note that the exchange "was not i n respect of an e s s e n t i a l part of the proceedings since the exchange d i d not advance the proceedings i n any material way" (p. 477). The Federal Court c i t e d Reale as authority for the general p r o p o s i t i o n that everything must be tra n s l a t e d , but the dictum mentioned above regarding non-essential parts of the in q u i r y which do not advance the proceedings does not exemplify the philosophy expressed i n Reale, where defense counsel had observed that, without complete t r a n s l a t i o n , the accused would be unable to draw the a t t e n t i o n of counsel to matters he thinks should be dealt with. Leiba v. Minister of Manpower and Immigration (1972) held that a v i s i t o r to Canada who applies f o r permanent resident status while i n the country should be provided with the assistance of an in t e r p r e t e r i n making h i s a p p l i c a t i o n and having h i s interview. The reasoning was that, when such an a p p l i c a t i o n i s refused, a hearing should be held to determine whether the applicant should be allowed to remain i n Canada or deported, and at the hearing, an i n t e r p r e t e r would be provided. A case such as t h i s had wide-ranging implications f o r such things as the numerous a p p l i c a t i o n s to extend fo r e i g n student v i s a s which have to be made each year, or whenever a student wishes to change schools. The next group of cases to be discussed deal with assessing the need f or i n t e r p r e t a i o n . As stated e a r l i e r , no guidelines for making t h i s f i n d i n g of fac t have been provided. Opposite tendencies can be found i n the cases. Sometimes the court bends over backwards to provide 160 i n t e r p r e t a t i o n at the s l i g h t e s t i n d i c a t i o n that i t i s needed. Other times, the court i s s c e p t i c a l when there i s a suggestion that the i n d i v i d u a l i s not being f o r t h r i g h t about the need for an i n t e r p r e t e r . One way that evidence of a b i l i t y to understand the language of the proceedings i s proved i s through evidence that shows that the i n d i v i d u a l had engaged i n conversations i n English p r i o r to the t r i a l . The King v. Meceklette (1909) was the e a r l i e s t reported case found which de a l t with the need for an i n t e r p r e t e r at t r i a l . The appellant i n that case claimed that he had not known that he was on t r i a l , and d i d not understand the evidence that was given. The court d i d not believe him, p r e f e r r i n g the court i n t e r p r e t e r ' s opinion on t h i s point. The court a l s o took note of the p o l i c e o f f i c e r ' s testimony: A policeman a l s o swears that he, upon a r r e s t i n g the defendant, had a conversation with him for about ten minutes, that the defendant spoke f a i r l y good English, and that he (the policeman) understood p r a c t i c a l l y a l l the defendant said, and that the defendant answered i n t e l l i g e n t l y questions put to him i n English (p. 18). It i s not quite accurate to say that the court l e t others make i t s d e c i s i o n for i t , but c e r t a i n l y there i s a tendency i n that d i r e c t i o n . A modern case with the same f l a v o r i s R. v. Petrovic (1984). A p o l i c e o f f i c e r fluent i n the f o r e i g n language spoken by the accused t e s t i f i e d that he had had a conversation with the accused and the accused understood English better than he spoke i t ; also, the accused appeared to understand everything that went on at t r i a l . The appellate court spoke to the request to reexamine the record and look for evidence of lack of understanding: [ l ] t i s not for the t r i a l court and much les s for an appellate court to conduct a d e t a i l e d i n q u i r y i n t o the party's or witness' a b i l i t y to understand or speak the language of the court proceedings (p. 423). 161 This i s not an encouraging a t t i t u d e . On the other hand, the court d i d state that even speaking "broken English or French" would not remove the c o n s t i t u t i o n a l r i g h t to the assistance of an i n t e r p r e t e r . The t r i a l court should not deny the request for an i n t e r p r e t e r , said the a p p e l l a t e court, i n the absence of strong evidence that the request was not made i n good f a i t h . But the court does not want to take on the challenge of analyzing t r i a l t r a n s c r i p t s . The appellate court's i n t e r p r e t a t i o n of what happened at t r i a l i s sometimes i n t e r e s t i n g . In R. v. Abraham (1977), a teen-aged Montagnis-speaker appealed her conviction on the ground that she had not understood what the proceedings were a l l about. Denying the appeal, the Newfoundland Court of Appeal accepted the t r i a l judge's opinion that the g i r l had "a working knowledge of English" and d i d not understand the charges she was f a c i n g . The court emphasized the f a c t that, though an i n t e r p r e t e r had been provided at t r i a l as a precautionary measure, the record d i d not i n d i c a t e that the i n t e r p r e t e r ' s services had been "required." Thus the accused's f a i l u r e to use the i n t e r p r e t e r can be taken as evidence of comprehension, assuming that the accused i s a good judge of h i s own l e v e l of comprehension at t r i a l . Two other r e l a t e d cases can be mentioned here. In R. v. M a r i n e l l o (1980), the b r i e f case summary notes that there was no a f f i d a v i t evidence concerning the accused's need for an i n t e r p r e t e r at t r i a l , nor had the accused requested an i n t e r p r e t e r . There seems to be a presumption of comprehension, then, which would have to be rebutted one way or another. In R. v. Blentzas (1983), the Nova Scotia Court of Appeal saw nothing wrong with the f a c t that no i n t e r p r e t e r had been used at the preliminary hearing, but one was provided at t r i a l . Had the 162 accused learned English so r a p i d l y , or was there a lesser need for i n t e r p r e t a t i o n at the preliminary hearing? (Is there a double standard?) The t r i a l t r a n s c r i p t does receive scrutiny i n some appeals, contrary to Petrovic. In Marinello, the court looked at the t r a n s c r i p t and saw no "lack of f a m i l i a r i t y with English" there. More extensive comments were offe r e d i n R. v. Berger (1975), which was reviewed e a r l i e r i n t h i s study. There, the accused sometimes used an i n t e r p r e t e r at t r i a l , and sometimes not. The appeal court examined the t r a n s c r i p t and found evidence of comprehension: [The accused] had a good and c l e a r understanding of English and could express himself c l e a r l y i n speech. He gave most, of h i s evidence i n c l e a r i f sometimes ungrammatical English. He answered most questions put to him i n English and h i s answers were c l e a r l y responsive to the questions put and r a t i o n a l r e p l i e s to them (pp. 375-376). The court r a r e l y searches for misunderstanding,it would seem. The "strongest" approach i s merely to presume that the accused can communcite. In Sadowski v. The Queen (1963), for instance, the court concluded that since the accused had been a Canadian resident f or several years, he must have learned the rudiments of either French or En g l i s h . On the other hand, the t r i a l judge's d i s c r e t i o n i n determining the accused's langauge a b i l i t y was emphasized i n R. v. Unterreiner (1980), discussed e a r l i e r . In the judgement, the following quotation from a law texbook i s quoted with approval: [T]he t r i a l judge i s not bound to accept the statement of counsel producing the witness as to the l i n g u i s t i c a b i l i t y of the witness, but may allow the examination to proceed to determine the matter for himself (p. 380). This i s i n contrast to o f f i c i a l procedure i n immigration hearings, i t 163 should be noted. The existence of the r i g h t to an interpreter i n court i s perhaps the most important facet of t h i s problem, but waiver of the r i g h t can be just as important i n p r a c t i c e . The presence of competent counsel seems to r e l i e v e the court of some of i t s r e s p o n s i b i l i t y i n deciding when the r i g h t has been waived. In R. v. H i j a z i (1974), although the accused received "a running t r a n s l a t i o n of the evidence as i t was introduced," the judge's charge to the jury was not translated. A f t e r f i v e or s i x minutes, defense counsel noticed the lack of t r a n s l a t i o n but sa i d nothing to the judge. This, the Ontario Court of Appeal held, could be " f a i r l y i nterpreted as a waiver of the r i g h t of the accused, ... a waiver which binds the appellant" (p. 185). In Re H i l t s and the Queen (1984), counsel acquiesced i n the use of an int e r p r e t e r who had not been sworn, and even used the i n t e r p r e t e r himself. Henry, J . held t h i s to be a waiver of the r i g h t to have the inter p r e t e r sworn, r e l y i n g on the Supreme Court of Canada d e c i s i o n i n Matheson v. The Queen (1981), which established that an accused could waive compliance with the r u l e that witnesses be sworn. The court a l s o noted that the American authority, Wigmore, was of the opinion that an in t e r p r e t e r i s a kind of witness, and must be sworn, but that f a i l u r e to object to unsworn evidence at the time amounted to a waiver, and objection could not be taken l a t e r . (Treating the i n t e r p r e t e r as an expert witness i s an approach which could bring competence in t o the spotlight.) The law on waiver i n general was summarized by the court i n R. v. Heaslip et a l . (1983). Martin, J.A., speaking for the court, stated: As a general pro p o s i t i o n , an accused may waive a procedural requirement that i s enacted for his be n e f i t . In the case of a procedural requirement enacted f o r the benefit of both the Crown and the 164 accused, the concurrence of both p a r t i e s i s necessary. The waiver must be express and mere silence or lack of objection does not c o n s t i t u t e a waiver. Although no p a r t i c u l a r words or formula are necessary, the v a l i d i t y of any waiver i s dependent upon i t being clear and unequivocal that the person i s waiving the porcedural safeguard and i s doing so with f u l l  knowledge of the r i g h t s the procedure was enacted to  protect and of the e f f e c t the waiver w i l l have on  those r i g h t s (pp. 491-492; emphasis added). The Reale case bears mentioning here since i t was said there that the accused cannot choose to dispense with the t r a n s l a t i o n , and i t i s immaterial that he may not apply for the assistance of an i n t e r p r e t e r (p. 347). H e a l s l i p has important implications for the s. 14 r i g h t since the accused or party might have to be t o l d about the l i n g u i s t i c and i n t e r a c t i o n a l e f f e c t s of having and not having i n t e r p r e t a t i o n . Comment To s o c i a l s c i e n t i s t s , courtrooom i n t e r a c t i o n i s a high l y complex phenomenon, one which i s not well-known event to those for whom i t i s the workplace. Numerous subtle yet r e a l cuurents run throughout the i n t e r a c t i o n , such as patterned expectations for s t o r y t e l l i n g , informal and unstated i n d i c e s of truthfulness, nonverbal communication preferences, language which i s challenging even for native speakers of English, prejudices regarding accent, and comprehension problems caused by the intermixture of language and cu l t u r e . P r a c t i t i o n e r s seem to have varying kinds of awareness of these f a c t o r s , and few i f any possess a comprehensive view such as emerges from the s o c i a l science l i t e r a t u r e . Since the data c o l l e c t e d i n the present study seem to suggest that b i l i n g u a l i s m or b i c u l t u r a l i s m i s necessary for some of the issues to be f u l l y recogized and appreciated, i t must be hypothesized that there are many members of both the bar and the bench, and many court i n t e r p r e t e r s 165 as well, whose awareness i s l i m i t e d . The courts do not recognize any of these issues,save those which can be f i t t e d i n t o i t s categories of procedural and l e g a l questions. U n t i l the Supreme Court of Canada s e t t l e s these issues, of course, we must expect a v a r i e t y of reponses from the courts and lawyers must select the case precedents most favorable to t h e i r point of view i n each p a r t i c u l a r s i t u a t i o n . This i s always the case, of course, but there are also opportunities to improve the p i c t u r e which the courts have of inter r o g a t i o n and courtroom i n t e r a c t i o n , including the r o l e of i n t e r p r e t a t i o n i n both s i t u a t i o n s . The s. 15 equality p r o v i s i o n , i t would seem, o f f e r s a way to h i g h l i g h t various issues which have l a i n dormant u n t i l r e c e n t l y . The courts do not discuss ethnic o r i g i n , yet i t i s c e n t r a l to s o c i a l s c i e n t i s t s as well as p r a c t i t i o n e r s i n t h e i r understanding of the l e g a l process. Ethnic o r i g i n represents a lacuna within the l e g a l perspective, and one which may be capable of being f i l l e d through the Charter. 166 CHAPTER SIX CONCLUSIONS AND RECOMMENDATIONS 167 The research reported herein was designed to compare the viewpoints of s o c i a l s c i e n t i s t s , p r a c t i t i o n e r s , and j u r i s t s regarding the r o l e of ESL-related factors which a f f e c t the two communication-r e l a t e d r i g h t s contained i n the Charter of Rights and Freedoms, the r i g h t to be informed of the right to r e t a i n and i n s t r u c t counsel without delay upon detention or ar r e s t , and the r i g h t to the assistance of an in t e r p r e t e r i n any proceedings where the i n d i v i d u a l does not speak or understand E n g l i s h . Any differences between the l e g a l viewpoint and the other viewpoints would indicate areas where concern might be warranted. When i t seems that the l e g a l perspective r e f l e c t s a lack of awareness or appreciation of ESL-speaker-related issues, there may be an opportunity to provide the needed background. And when there i s a c o n f l i c t between the l e g a l perspective and the other perspectives on any p a r t i c u l a r issue, there i s a need to further explore the s i t u a t i o n and explain the di f f e r e n c e s . In cases where the courts so far have f a i l e d to recognize the existence of ESL-speaker issues, there i s the p o s s i b l i l i t y that j u d i c i a l n otice can be taken of various considerations which a f f e c t i n t e r r o g a t i o n and courtroom proceedings. This implies disseminating information about the issues which a r i s e so that these become matters which q u a l i f y as something i n the nature of "common knowledge." In other cases, i t may be possible to use expert testimony i n broadening the court's perspective. It must be borne i n mind that i t i s not enough to show that the ri g h t s of any person have been v i o l a t e d . There i s no automatic remedy contained i n the Charter. Instead, there i s only the r i g h t to request a remedy, i n s. 24: (1) Anyone whose ri g h t s or freedoms, as guaranteed by t h i s Charter, have been i n f r i n g e d or denied may 168 apply to a court of competent j u r i s d i c t i o n to obtain such remedy as the court considers appropriate and just i n the circumstances. Usually, the remedy sought i n i n d i v i d u a l cases such as those surveyed i n the present research project has been the exclusion of evidence which was obtained i n v i o l a t i o n of the accused's r i g h t s , which i s allowed i n the second subsection of s. 24: (2) Where, i n proceedings under subsection (1), a court concludes that evidence was obtained i n a manner that i n f r i n g e d or denied any r i g h t s or freedoms guaranteed by t h i s Charter, the evidence s h a l l be excluded i f i t i s established that, having regard to a l l the circumstances, the admission of i t i n the proceedings would bring the administration of j u s t i c e i n t o disrepute. While t h i s i s a l e g a l issue which does not involve ESL-speakers i n p a r t i c u l a r , we may note that i n some cases, the courts have simply held that the administration of j u s t i c e would not be brought i n t o disrepute by admitting i l l e g a l l y obtained evidence. T y p i c a l l y , the reasoning i s that since the crime was an e s p e c i a l l y nasty one, the p u b l i c would not object to c o n v i c t i n g the accused through the use of i l l e g a l l y obtained evidence. A p o s s i b i l i t y which has yet to be taken up i s that of applying to a court for amelioration of unfairness which a f f e c t s a number of persons, e.g., members of one or more ethnic groups, regarding standard procedures followed i n p o l i c e i n v e s t i g a t i o n s or i n l e g a l proceedings. A number of examples of t h i s type w i l l be offered below i n discussing the issues that were uncovered i n the research and the way that the court t y p i c a l l y handles the issues. In the attempt to reduce or eliminate d i s c r i m a t i o n which i s caused by ethnic o r i g i n or other f a c t o r s , use can be made of s. 15(2) of the Charter, which allows f o r "affirmative 169 a c t i o n " i n the form of "any law, program or a c t i v i t y " designed to ameliorate the conditions of "disadvantaged i n d i v i d u a l s or groups i n c l u d i n g those that are disadvantaged because of ... ethnic o r i g i n ..." (emphasis added). Conceivably, the court could mandate special p o l i c e procedures to be followed i n dealing with ESL-speaking suspects, f o r example. There i s precedent i n Canadian statutory law for re q u i r i n g s p e c i a l procedures to be followed i n the case of s p e c i a l types of persons: The  Young Offenders Act, a statute enacted at roughly the same time as the Co n s t i t u t i o n Act, c a l l s for modified p o l i c e procedures and evidentiary r u l e s i n the treatment of persons under the age of eighteen. For example, s. 56(2) provides that no statement i s admissible against the younger person unless i t was both voluntary and i t had been " c l e a r l y explained" to the i n d i v i d u a l , " i n language appropriate to h i s age and understanding" (emphasis added), that he had a r i g h t to sile n c e and that any statement he made might be used against him i n court. Other provisions which seem relevant to the present discussion include the requirement that the younger person be given "a reasonable opportunity to consult with counsel or a parent, or i n the absence of a parent ,an  adult r e l a t i v e , or i n the absence of a parent and an adult r e l a t i v e , any  other appropriate adult chosen by the young person ... [s. 56(2) ( c ) ; emphasis added]. Another p r o v i s i o n i s that any waiver of the r i g h t s mentioned i n the Act must be made i n w r i t i n g "and s h a l l contain a statement signed by the young person that he has been apprised of the r i g h t that he i s waiving." Both age and ethnic o r i g i n are mentioned i n s. 15 as fa c t o r s which must not lead to d i s c r i m i n a t i o n , so the Young 170 Offenders Act could o f f e r a model for s i m i l a r protections to be afforded to ESL-speakers. The Right to an Interpreter  The q u a l i t y of i n t e r p r e t a t i o n The most obvious problem which the research uncovered with respect to i n t e r p r e t a t i o n i s the adequacy of i n t e r p r e t a t i o n provided i n court. The same considerations apply to i n t e r p r e t a t i o n during interrogation, but t h i s problem was not encountered very often i n the research; however, the same p r i n c i p l e s apply. While the l e g a l judgments d i d not d i s p l a y any awareness of v a r i a t i o n i n the q u a l i t y of i n t e r p r e t a t i o n , the interviews with p r a c t i t i o n e r s suggested strongly that v a r i a t i o n i s the norm. This could be considered prima f a c i e evidence of unfairness since i t means that some accuseds receive better i n t e r p r e t a t i o n than others. In some cases, the l o c a t i o n (e.g., urban-rural) may be a f a c t o r . While i t does not seem unfair to assign the better i n t e r p r e t e r s to the more "important" t r i a l s , and i t i s not reasonable to expect the more highly q u a l i f i e d i n t e r p r e t e r s to l i v e i n remote regions where they are not l i k e l y to be able to work enough to earn a decent l i v i n g , the ESL-speaking accused i s not the cause of these problems, and should not be made to suf f e r on t h i s account. At present, an ESL-speaker would probably be well advised to get arrested i n a large c i t y with a s u b s t a n t i a l foreign-language-speaking population; or to request a change of venue i f he i s facing a hearing or a t r i a l i n an upcountry l o c a t i o n where i t may be necessary to make do with whatever in t e r p r e t e r happens to be a v a i l a b l e . There i s no equality i f adequate i n t e r p r e t a t i o n depends on where the a r r e s t was made. 171 Professional i n t e r p r e t e r s set high standards for themselves, and show great concern for maintaining those standards. In the s o c i a l science l i t e r a t u r e , i t was seen that p r o f e s s i o n a l i n t e r p r e t a t i o n i s a h i g h l y demanding undertaking, one which requires not only excellent l i n g u i s t i c a b i l i t y i n both languages but i n t e l l i g e n c e and s p e c i a l i z e d t r a i n i n g i n i n t e r p r e t a t i o n . Both the interviews with p r a c t i t i o n e r s and the cases indicated that i n t e r p r e t e r s of t h i s standard are not always found i n the courtroom. The f a c t that not a l l court i n t e r p r e t e r s can be assumed to be highly trained p r o f e s s i o n a l s and the d i f f i c u l t y of detecting inadequate i n t e r p r e t a t i o n point to the need for formal t r a i n i n g and o f f i c i a l c e r t i f i c a t i o n of court i n t e r p r e t e r s . This problem r a i s e s the question of what " i n t e r p r e t e r " means. Does s. 14 of the Charter merely guarantee the r i g h t to the assistance of a b i l i n g u a l i n d i v i d u a l , whose l i n g u i s t i c competence has not been tested, and who translates the accused's words i n t o non-native-speaker-l i k e English? This would be completely unacceptable i n conference i n t e r p r e t i n g , according to the l i t e r a t u r e . If the Charter guarantees what professional i n t e r p r e t e r s mean by " i n t e r p r e t e r , " there i s a l l the more need for t r a i n i n g and c e r t i f i c a t i o n of court i n t e r p r e t e r s . The equality section seems relevant i n t h i s connection, for without excellent i n t e r p r e t a t i o n , an ESL-speaker cannot present h i s evidence as well as a native speaker of E n g l i s h . A s i m i l a r issue involves the simultaneous i n t e r p r e t a t i o n provided by the "party i n t e r p r e t e r . " The interviews with p r a c t i t i o n e r s seemed to suggest that r e l a t i v e l y less concern i s devoted to providing the accused with continual t r a n s l a t i o n of everything said i n court. In the cases, too, we can detect the ( u n o f f i c i a l ) b e l i e f that simultaneous 172 i n t e r p r e t a t i o n of the proceedings i s not of the same importance as the consecutive i n t e r p r e t a t i o n of testimony. Further i n v e s t i g a t i o n i n t h i s area might well reveal that the concept of i n t e r p r e t a t i o n i n the l e g a l system r e f e r s to t r a n s l a t i o n of testimony. Such a b e l i e f , which might be held by judges and lawyers a l i k e , would make i t even more important to e s t a b l i s h c l e a r expectations for simultaneous i n t e r p r e t a t i o n . Since i t i s well established i n the l i t e r a t u r e that simultaneous i n t e r p r e t a t i o n i s the more challenging type, there i s even less j u s t i f i c a t i o n for pressing i n t o service whatever b i l i n g u a l person may be handy. The cost of i n t e r p r e t a t i o n It i s regrettable that the Charter does not s t i p u l a t e that the assistance of an i n t e r p r e t e r s h a l l be f r e e . From the cases, one gets the f e e l i n g that the i n t e r p r e t e r i s viewed as an adjunct to the courtroom equipment, i . e . , part of the machinery with which the government t r i e s accused persons, much l i k e the court c l e r k or the court stenographer. In t h i s view, i n t e r p r e t i n g the testimony of non-English-speaking witnesses i s a necessary e v i l . In other words, the concern with i n t e r p r e t a t i o n a r i s e s from the p r a c t i c a l necessity of prosecuting people, rather than from a desir e to ensure that ESL-speakers' l e g a l r i g h t s are protected at every turn. The Charter may o f f e r r e a l improvements over case law i n terms of protecting those r i g h t s , but i f i n t e r p r e t a t i o n i s not i n fa c t made a v a i l a b l e i n a l l cases where the r i g h t to i n t e r p r e t a t i o n a r i s e s , then the Charter w i l l be an impotent statute. It i s an empty r i g h t whose benefits are not a v a i l a b l e to a l l who enjoy the r i g h t . The argument which suggests i t s e l f i n t h i s 173 connection i s that i t would be a d e n i a l of the equal p r o t e c t i o n of the law to provide i n t e r p r e t a t i o n only for the Crown's witnesses. When does the r i g h t to i n t e r p r e t a t i o n a r i s e ? Just as the courts seem to take a non-problematic approach to the q u a l i t y of i n t e r p r e t a t i o n , so the question of whether a p a r t i c u l a r i n d i v i d u a l speaks or understands English s u f f i c i e n t l y well receives l i t t l e a t t e n t i o n i n the cases. This issue i s treated as a question of f a c t , and so j u r i s p r u d e n t i a l issues are not apparently involved. However, i t i s not d i f f i c u l t to f i n d such issues within the interview data and the l i t e r a t u r e review i n the present study. These include what are e s s e n t i a l l y l e g a l issues, i . e . , questions which a r i s e i r r e s p e c t i v e of the f a c t s i n a p a r t i c u l a r case. Judges are not trained to evaluate the performance of i n t e r p r e t e r s or assess the English a b i l i t y of p a r t i e s or witnesses. This being the case, we can guess that judges have to r e l y on t h e i r commonsense a b i l i t i e s to perform such evaluations. Part of what needs to be done i s to determine e m p i r i c a l l y whether commonsense judgments of l i n g u i s t i c a b i l i t y are i n f e r i o r to p r o f e s s i o n a l judgments, for example, i n the Foreign Service Interview. If i t can be shown that assessment of l i n g u i s t i c fluency i s indeed a p r o f e s s i o n a l undertaking, there w i l l be a basis for arguing that assessment should not be l e f t to the judge as a matter of d i s c r e t i o n . The cases reviewed i n the present study do not show a welcoming a t t i t u d e on the part of the court toward l i n g u i s t i c evidence, and i t should not be assumed that courts would be e n t h u s i a s t i c about having t h e i r d i s c r e t i o n narrowed or reduced. Part of the problem i s the necessity of making c a t e g o r i c a l judgments about l i n g u i s t i c a b i l i t y , v i z . , the i n d i v i d u a l either does or 174 does not "speak English." It i s necessary i n everyday l i f e to make simple c l a s s i f i c a t i o n s of numerous phenomena; i n many i f not most cases, experts can provide more d e t a i l e d and more s p e c i f i c evaluations, but often i t i s not necessary to have the services of experts. However, l e g a l proceedings are not everyday l i f e , and there i s reason to question what i s tantamount to a l e g a l f i c t i o n , that English p r o f i c i e n c y i s either present or absent, and a l l that i s required i s to categorize the p a r t i c u l a r case. Demonstrating e m p i r i c a l l y for the courts' b e n e f i t that the range of English a b i l i t y i s accurately described only by a continuum, rather than by mutally exclusive categories, might add weight to the argument that determining whether an i n d i v i d u a l understands or speaks English should be performed by s c i e n t i f i c means, e.g., with the use of a performance-oriented t e s t administered by trained personnel. Demonstrating that English a b i l i t y i s continuously d i s t r i b u t e d would show that there i s a c t u a l l y very l i t t l e d i f f e r e n c e between two i n d i v i d u a l s who f a l l on either side of the a r b i t r a r y l i n e drawn between those adjudged to speak and not speak English. Having a usable test of English a b i l i t y might a l s o be relevant for the l e g a l question of what the cutoff point for the s. 14 r i g h t should be. It might be argued by some that the l e v e l of English a b i l i t y which i s adequate for everday l i f e i s enough to remove the r i g h t to i n t e r p r e t a t i o n i n l e g a l proceedings. The interview data suggested that there are many i n d i v i d u a l s who do have such a l e v e l of a b i l i t y but cannot function adequately i n l e g a l proceedings, so t h i s issue i s a s i g n i f i c a n t one. The obvious danger i s that, i f l i n g u i s t i c a b i l i t y i s decided according to commonsense standards, i t i s l i k e l y that recourse w i l l be had to everyday l i f e f o r an i n d i c a t i o n of what the standard i s . 175 The equality p r o v i s i o n could be used here to argue that an ESL-speaker should not be made to go through a l e g a l proceeding with l e s s e r English a b i l i t y (made a v a i l a b l e ) than that possessed by members of other ethnic groups, e.g., English-speaking Canadians. Thus i t could e a s i l y be argued that the native-speaker standard should be used i n deciding whether the party or witness speaks or understands English. Since s. 14 i t s e l f o f f e r s no g uidelines, i t i s absolutely necessary to look e l s e where to answer t h i s question. What i s being argued here i s that i t i s better to turn to the science of applied l i n g u i s t i c s than to common sense for an answer. Note that i t i s not necessary to have t r a i n e d l i n g u i s t s on c a l l — a l l we need to i s create an appropriate, useful test which can be adminstered by court personnel who have had s u i t a b l e t r a i n i n g i n using the t e s t . The concept of i n t e r p r e t a t i o n The cases showed that the court not only has a non-problematic a t t i t u d e toward i n t e r p r e t a t i o n , assuming i t to be adequate u n t i l and unless i t has been demonstrated to be otherwise, but may d i s p l a y a lay view of what i n t e r p r e t a t i o n i nvolves. The Charter not only f a i l s to specify who i s e n t i t l e d to an i n t e r p r e t e r and who i s an i n t e r p r e t e r , but does not explain what i n t e r p r e t a t i o n i s . Again, the courts may have to turn to commonsense notions for guidance. In t h i s case, i t i s exceedingly c l e a r that the commonsense viewpoint i s inadequate. It was shown i n the p r o f e s s i o n a l l i t e r a t u r e on t r a n s l a t i o n that there are i n fac t a number of d i f f e r e n t methods of performing what the courts t r e a t as simply t r a n s l a t i o n or i n t e r p r e t a t i o n . A question a r i s e s , then, as to which methods the courts p r e f e r , or w i l l accept; and how the judge can know which method i s being used from moment to moment. In the cases, 176 there i s no evidence that these questions are recognized, and the interview data c o l l e c t e d i n t h i s study r e i n f o r c e that impression. The court's "naive" view of i n t e r p r e t a t i o n e n t a i l s that the translated version must be treated as being the same as what a n a t i v e -speaker utterance would have been. As one lawyer observed, the judge cannot think that the speaker meant something e l s e — t h e t r a n s l a t e d utterance has to be evaluated as i f i t had been made i n En g l i s h by an anglophone. In t h i s way, a l l "losses i n t r a n s l a t i o n " are wiped o f f the books, as i t were. There i s a l s o the opposite consideration: what the party or witness understands. Misunderstanding on the part of the accused or the witness may sometimes be apparent i n the t r a n s c r i p t , as was the case i n the example analyzed by Gumperz (1982), but there may a l s o be confusion which w i l l never appear on the record. These losses i n t r a n s l a t i o n , too, are edited out by the "bookkeeping' system which deems a l l t r a n s l a t i o n to be adequate. A problematic view of i n t e r p r e t a t i o n i n l e g a l proceedings would not eliminate such problems, but i t might prevent them from being swept away by f i a t . One other aspect of the lay view of i n t e r p r e t a t i o n which the courts seem to d i s p l a y i s that i t i s non-cultural, i . e . , language i s treated as something d i s t i n c t from c u l t u r e . C u l t u r a l or ethnic issues are not recognized as bearing on court i n t e r p r e t a t i o n ; i n e f f e c t , c u l t u r a l equivalence i s assumed. In contrast, the s o c i a l science l i t e r a t u r e i s quite c l e a r i n emphasizing the i n t e r r e l a t i o n s h i p of language and c u l t u r e , and the r o l e of culture i n the t r a n s l a t i o n process. E q u a l i t y issues a r i s e i n t h i s connection i n that an accused may be unable to state h i s case adequately i f the d i f f e r e n t c u l t u r a l meanings involved are not interpreted properly for the t r i e r of f a c t . 177 In t h i s sense, a verbatim or l i t e r a l t r a n s l a t i o n should be viewed as suspect since the i m p l i c a t i o n i s that any c u l t u r a l meanings are removed from the t r a n s l a t i o n , whereas the c e n t r a l core of meaning may well be c u l t u r a l i n nature. C e r t a i n l y the s. 14 r i g h t should not be considered to be the r i g h t to have one's communication stripped of i t s c u l t u r a l context, for that would be discriminatory. Recording the foreign-language utterances One need i n enabling the problems i n court i n t e r p r e t a t i o n to be addressed i s to provide audio recording of the foreign-language utterances. This would allow the detection of any inadequacies i n i n t e r p r e t a t i o n , which i s s i g n i f i c a n t both for the d e c i s i o n i n the case and for the question of i n t e r p r e t e r s ' competence. No doubt court i n t e r p r e t e r s would take t h e i r jobs more s e r i o u s l y i f they knew that any errors they made would be recorded f or p o s t e r i t y . The interviews with p r a c t i t i o n e r s i n d i c a t e d that there are numerous, sometimes egregious errors committed by court i n t e r p r e t e r s , yet there i s at present no way of checking the adequacy of i n t e r p r e t a t i o n i n any p a r t i c u l a r case (other than having another b i l i n g u a l , i d e a l l y a l s o a trai n e d i n t e r p r e t e r , present i n the courtroom). The need for recording the foreign-language utterances i s connected with the issue of i n t e r p r e t e r competency, i n that i f competence can i n fa c t j u s t i f i a b l y be assumed, recording i s unnecessary; since the s i t u a t i o n seems to be quite otherwise, according to the interviews, recording i s needed. Being informed of the r i g h t The Charter does not say that either a suspect being interrogated or a party or witness i n any proceedings must be informed of the s. 14 r i g h t . This leads to a number of problems. Most obvious i s the 178 p o s s i b i l i t y that, as one interviewee stated, many people s u f f e r through proceedings without the assistance of an i n t e r p r e t e r because they were not aware of, and were not informed of, the r i g h t to the assistance of an i n t e r p r e t e r . Since some cases hold that a r i g h t of t h i s type cannot be said to have been denied i f i t was not exercised, there may be a r e a l problem. While waiver of a r i g h t requires that the i n d i v i d u a l know of ' the r i g h t and appreciate what i t involves, f a i l i n g to exercise the r i g h t may mean that the e n t i r e issue goes by the board. One approach to t h i s issue i s the argument that Parliament cannot have intended that i n d i v i d u a l s enjoy r i g h t s of which they s h a l l not be t o l d , since then they cannot exercise the r i g h t s . On the other hand, there i s a l e g a l presumption that everyone knows the law, and t h i s might include knowing of the r i g h t to an i n t e r p r e t e r . In the l i t e r a t u r e , more than one commentator treated the r i g h t to s i l e n c e as a r i g h t that should be communicated to suspects, as i s done both i n the Canadian Young  Offenders Act and i n the American Miranda guide l i n e s . The same a t t i t u d e could be taken toward the r i g h t to i n t e r p r e t a t i o n . It a d d i t i o n to the straightforward l e g a l question of whether the r i g h t must be communicated to those who may q u a l i f y , there are c e r t a i n t a c t i c a l considerations which a r i s e . One of them i s that knowing of the existence of the r i g h t at the time of i n t e r r o g a t i o n may well influence a suspect i n h i s d e c i s i o n to make inculpatory statements. I f , for example, he believes that there w i l l not be a r e l i a b l e way for him to state h i s case i n court, he may be more l i k e l y to accept a s o l u t i o n proposed by the i n v e s t i g a t o r . Another p o s s i b i l i t y i s that i f the r i g h t to the assistance of an i n t e r p r e t e r i s not made known to the accused ahead of time, he w i l l not be able to make whatever preparations he may 179 wish to make regarding i n t e r p r e t a t i o n . For instance, he may be i n a p o s i t i o n to r e t a i n h i s own i n t e r p r e t e r f o r the purpose of providing simultaneous i n t e r p r e t a t i o n of the proceedings. In add i t i o n , he may wish to have a trained i n t e r p r e t e r present i n the courtroom to detect any shortcomimgs i n the t r a n s l a t i o n performed by the court-appointed court i n t e r p r e t e r . These things he cannot do i f he i s not informed ahead of time of the r i g h t to i n t e r p r e t a t i o n that he w i l l enjoy at t r i a l . In a l l of t h i s , perhaps the simplest and most relevant observation which can be made i s that i t i s a simple thing to inform him of h i s r i g h t , a r i g h t which Parliament has decreed that he s h a l l enjoy. The hearsay issue and the r o l e of the i n t e r p r e t e r As we saw i n the cases, i t may offend the r u l e against hearsay evidence i f an invest i g a t o r t e s t i f i e s as to what the suspect said on the basis of a tr a n s l a t e d conversation. The s p e c i f i c l e g a l issue i s whether the words of the in t e r p r e t e r are, i n law, those of the suspect. The opposing viewpoints found i n the cases appear to be based on the question of whether the inter p r e t e r acts as a mere mouthpiece of the suspect, as a " b i l i n g u a l transmitter," or contributes something of h i s own and uses h i s own judgment. To the extent that i n t e r p r e t a t i o n i s a mechanical process which neither adds anything to nor subtracts anything from the communication, the courts seem to be w i l l i n g to treat the i n t e r p r e t e r ' s words as those of the suspect. Both the l i t e r a t u r e review and the interviews with p r a c t i t i o n e r s bear on t h i s i s s u e . Among pro f e s s i o n a l i n t e r p r e t e r s , according to the l i t e r a t u r e , i t i s not maintained that there i s only one correct way to in t e r p r e t a p a r t i c u l a r passage, for one thing. In addition, the concept of i n t e r p r e t a t i o n found among those who p r a c t i c e that profession does 180 not r e f e r to word-for-word t r a n s l a t i o n , though t h i s i s one subtype. The essence of i n t e r p r e t a t i o n as found i n the l i t e r a t u r e seems to be that of f u n c t i o n a l or c u l t u r a l equivalence. So f a r , the courts have not appeared w i l l i n g to treat i n t e r p r e t a t i o n as d e a l i n g e s s e n t i a l l y with the t r a n s l a t i o n of meaning; instead, the tendency i s to see i n t e r p r e t a t i o n as the mere transposition of words i n one language to words i n another. Informing the Suspect of the Right to Counsel The s. 10(b) r i g h t i s even more s p e c i f i c a l l y d i r e c t e d at communication than i s the s. 14 r i g h t i n that i t requires that i n v e s t i g a t o r s engage i n a p a r t i c u l a r type of communication. Arguably, the section also indicates what l e v e l of success i n communication i s required: It does not state that the suspect should be given a chance to apprise himself of the r i g h t , but rather that he "be informed" of the r i g h t . The e s s e n t i a l issues here involved the concept of comprehension, which i s implied i n the notion of being informed. Proving comprehension of the r i g h t A l e g a l issue discussed i n the cases i s whether the Crown must prove that the suspect was informed of the r i g h t to counsel, or the defense must show that he was not so informed. This l e g a l question i s not made more c l e a r by the present research p r o j e c t . However, there are f a c t u a l questions which a r i s e regarding evidence that the suspect was informed of the r i g h t . One i s whether i t can be assumed that the suspect was informed from the fact that a sign was posted on the wall of the place where the suspect was incarcerated. Besides the obvious matter of l i t e r a c y i n the case of native speakers of English, t h i s question involves the d i s t i n c t i o n between everyday competence i n 181 E n g l i s h , such as many ESL-speakers may d i s p l a y , and the a b i l i t y to comprehend formal written English. For both native speakers of English and ESL-speakers, empirical studies of comprehension both o r a l and written s. 10(b) cautions would be u s e f u l . The recommended o r a l comprehension check—"Do you understand?"—is another p o t e n t i a l source of problems. In the cases, we see the view that an a f f i r m a t i v e question s e t t l e s the matter. As one interviewee observed regarding courtroom testimony, the judge cannot assume that things mean something d i f f e r e n t from what they appear on t h e i r face to mean. Both the s o c i a l science l i t e r a t u r e and the interview data suggest that some i n d i v i d u a l s experience genuine pressure to give an a f f i r m a t i v e response to a question posed by a person i n authority. It may be true that such pressure does not o r i g i n a t e with the investigator and that he i s not responsible for i t , but the issue i s not who i s at f a u l t . Rather, i t i s whether pressure e x i s t s , such that an i n d i c a t i o n of comprehension cannot be given the weight i t otherwise would be given. The form of the comprehension check deserves mention. F i r s t of a l l , since the wording of the check i s s i m i l a r i f not i d e n t i c a l to the type of comprehension check which occurs i n d a i l y l i f e i n conversation between native- and non-native speakers of English when understanding i s i n issue, the suspect may well have become f a m i l i a r with that p a r t i c u l a r question and may therefore understand the question i t s e l f as well as a native speaker of English understands i t . However, that does not mean that he a l s o understands the question's r e f e r e n t . Another consideration i n v o l v i n g the form of the comprehension check i s that i t may amount to a leading question, which i s defined as a question whose sturcture either i n d i c a t e s the answer expected or suggests the answer. It was also noted 182 i n the l i t e r a t u r e that force-choice questions l i m i t and c o n t r o l the response. In t h i s case, the p o s s i b i l i t y of i n d i c a t i n g doubt or incomplete comprehension i s removed, as one interviewee observed. The yes/no form of the comprehension check, then, forces the suspect i n t o choosing between two a l t e r n a t i v e s , one of which i s apparently expected by h i s i n t e r l o c u t o r , while the other may be proscribed by the suspect's c u l t u r a l background. This i s a s i t u a t i o n where i t needs to be explained to the court that sometimes i t i s p o s s i b l e that words do not mean what they seem to mean. The court has a v a i l a b l e to i t analogous precedent regarding the need to take sp e c i a l steps to ensure the suspect's comprehension of h i s r i g h t s . Some of the cases reviewed i n t h i s study involve suspects with f a i r l y obvious d i s a b i l i t i e s , e.g., i n t o x i c a t i o n or mental retardation, and i n such cases the court seems w i l l i n g to place a higher duty oh the i n v e s t i g a t i n g o f f i c e r to check the suspect's comprehension. As mentioned e a r l i e r , recognition of i n d i v i d u a l d i f f e r e n c e s i n a b i l i t y to comprehend l e g a l r i g h t s i s a l s o found i n the Young Offenders Act. It would seem that the same approach could be taken i n the case of a suspect whose accent shows him to be a non-native speaker of E n g l i s h . Note that t h i s i s a separate question from deciding l a t e r whether the suspect a c t u a l l y u nderstood—investigators should receive s p e c i f i c i n s t r u c t i o n s to take extra precautions wiht ESL-speakers. If the a d v i s a b i l i t y of such procedures i s acknowledged, then i t would be unfair to postpone the solution u n t i l the t r i a l stage i s reached. The American experience with the Miranda d e c i s i o n shows that when courts take a firm stand on such matters, p o l i c e conform, not wishing to see suspects go free due to procedural i r r e g u l a r i t i e s . 183 Another perspective on comprehension of the caution can be gained from considering the matter of waiver of the r i g h t to r e t a i n and i n s t r u c t counsel. It i s f a i r l y well established i n the law that for waiver, there must be a f u l l a ppreciation of what the r i g h t e n t a i l s and what the consequences of waiver may be. If t h i s general view of the reqirements for waiver i s applied to the s. 10(b) caution, there i s even more reason to take pains to explain the r i g h t to the suspect, p a r t i c u l a r l y when he i s c l e a r l y foreign-born and/or a non-native speaker of English. This may involve explaining how the r i g h t i s exercised when i t i s not waived, including information regarding the nature of the a t t o r n e y - c l i e n t r e l a t i o n s h i p . In other words, the suspect's comprehension check, but from his appreciation of the f u l l meaning of the r i g h t . While t e s t i n g that appreciation i s inherently as problematic as t e s t i n g h i s understanding of the more l i m i t e d view of the r i g h t (e.g., as understanding the meaning of the i n d i v i d u a l words i n the caution), t h i s issue bears on the question of what comprehension r e f e r s to. The comprehension check might be expanded to, "Do you understand what a lawyer i s , how you can get one, and that you can have one r i g h t now?" Possibly a suspect would be comparatively more w i l l i n g to admit that he d i d not understand what a lawyer's r o l e i s , since t h i s would not r e f l e c t so c l e a r l y on h i s present i n t e r a c t i o n with the i n v e s t i g a t o r (not even understanding what the i n v e s t i g a t o r said might imply that the i n v e s t i g a t o r d i d not know how to make himself c l e a r ) . Empirical studies could be conducted to determine the extent to which the population at large t r u l y understands the lawyer-client r e l a t i o n s h i p ; the r e s u l t s of such studies could provide guidance to the courts i n deciding when 184 suspects have t r u l y been informed of the r i g h t i n a manner s u f f i c i e n t to enable the r i g h t to be waived. This does involve the l e g a l question of whether the test of comprehension of the r i g h t f o r purposes of discharging the s. 10(b) duty to inform-the suspect of the r i g h t i s the same as the test of comprehension for waiver of the r i g h t . One consideration which bears on t h i s question i s that suspects have the r i g h t to waive t h e i r r i g h t s , obviously, but they cannot exercise the former r i g h t unless they f u l l y appreciate the l a t t e r r i g h t s . It i s not just the suspect who i s concerned, e i t h e r . Society at large has an i n t e r e s t i n whether suspects are enabled to waive t h e i r r i g h t s . The suspect may wish to cooperate with the p o l i c e ; and the community, too, may wish him to do so. E s s e n t i a l l y , suspects must be rendered capable, i n law, of waiving t h e i r r i g h t s . In t h i s sense, then, the t e s t f o r "being informed" and the t e s t for waiving the r i g h t could be seen as i d e n t i c a l ; E q u a lity and the form of the s. 10(b) caution It i s a question of f a c t whether a p a r t i c u l a r suspect understood h i s r i g h t to counsel well enough to waive i t , but the courts have also addressed the question of i n what form the r i g h t should be communicated, i . e . , i n the language of the Charter i t s e l f or not. As some interviewees stated i n regard to the Charter caution, l e g a l language i s l i k e l y to be problematic. One observation which was made by interviewees i s that l e g a l language tends to be r e l a t i v e l y i n a c c e s s i b l e f o r a l l people. What i s of i n t e r e s t here, however, i s whether ESL-speakers are placed at a comparatively greater disadvantage. Two responses to the problem are to si m p l i f y the wording of the caution, and to t r a n s l a t e the caution. Regarding the former, more than 185 one researcher has expressed doubt that l i n g u i s t i c s i m p l i f i c a t i o n would be very e f f e c t i v e , but they were thinking of native speakers of E n g l i s h . B r i e r e (1978), who was dealing with comprehension by ESL-speakers, d i d favor s i m p l i f i c a t i o n . This i s a question which can be approached em p i r i c a l l y , by presenting a random sample of ESL-speakers with several versions of the caution. The r e s u l t s of such a study might be brought to bear on the l e g a l question of whether i t can be s u f f i c i e n t to use the statutory language. The other method, t r a n s l a t i o n of the caution, i s used by immigration i n v e s t i g a t o r s , who carry a card containing t r a n s l a t i o n s i n a number of the more common fo r e i g n languages. This approach can be seen as conforming to the statutory-language approach since the caution i s only translated, not modified. (The suspect i s allowed to be confused i n his own language, l i k e native speakers of English, so the e q u a l i t y requirement i s met!) T r a n s l a t i o n could also be effected through the use of audio recordings of the warning; t h i s would be advantageous since some ESL-speakers are i l l i t e r a t e i n t h e i r f i r s t language. Again, i t would be a simple matter to design a study to test the comparative effectiveness of s i m p l i f i e d and translated versions of the caution. The courts are well equipped to answer l e g a l questions, but l e s s well equipped to answer f a c t u a l ones, so i t would be highly appropriate f or applied l i n g u i s t s to lend t h e i r assistance i n t h i s connection. Such research projects could a l s o deal with an issue which i s l a r g e l y unappreciated both i n the s o c i a l science l i t e r a t u r e and i n the courts: whether a suspect i s a good judge of his own comprehension. More than one interviewee i n the present study offered an example of an accused or a person i n a s i m i l a r s i t u a t i o n who was mistaken i n t h i s regard. 186 ESL-speakers' a b i l i t y to exercise the r i g h t to counsel Some cases have held that the r i g h t to r e t a i n and i n s t r u c t counsel must be exercised, and f a i l u r e to exercise i t can be held to be a waiver of the r i g h t . This assumes that exercising the r i g h t i s not i n i t s e l f a problem. However, such an assumption cannot be made i n the case of ESL-speakers for more than one reason. The f i r s t obstacle i s that the telephone book i s written i n E n g l i s h . Lawyers do not place f o r e i g n -language advertisements i n the yellow pages. If an anglophone lawyer i s contacted, then the t r a n s l a t i o n problem a r i s e s . The remarks of one interviewee i n d i c a t e that t h i s i s a daunting problem for suspects. It cannot be assumed that a p o l i c e i n t e r p r e t e r i s always present at the time, not that such an i n t e r p r e t e r would be a v a i l a b l e to a s s i s t i n contacting counsel. One issue which a r i s e s i s whether any a l t e r n a t i v e s to the telephone book would be s u i t a b l e . The courts seem f a i r l y w i l l i n g to hold that p o l i c e must take at l e a s t some minimal steps to f a c i l i t a t e the exercise of the r i g h t to counsel, such as providing a telephone book and access to a telephone. One solution would be to provide audio-recorded information equivalent to that which i s found i n the telephone book, e.g., names and telephone numbers of lawyers. Such minimal assistance need not be given only i n English, e i t h e r . Since p o r t a b i l i t y i s not a problem i n i n t e r r o g a t i o n which takes place i n a p o l i c e s t a t i o n , i t would be easy to have a bank of recorded tapes on hand for t h i s purpose. The present research points to another, more comprehensive approach. Merely contacting an English-speaking lawyer i s not n e c e s s a r i l y s u f f i c i e n t f o r ge t t i n g l e g a l advice at the time of i n t e r r o g a t i o n , since, as noted, there may be no i n t e r p r e t e r a v a i l a b l e 187 ( e s p e c i a l l y i n the middle of the night, and c e r t a i n l y i n some geographical areas). A simple and probably very e f f e c t i v e s o l u t i o n would be to e s t a b l i s h a n a t i o n a l l e g a l t r a n s l a t i o n center with a t o l l -f r e e telephone number. Suspects anywhere i n Canada could c a l l the center and receive l e g a l advice from a s t a f f lawyer at the center, with the conversation being translated over the telephone by i n t e r p r e t e r s at the center. While t h i s might not often r e s u l t i n a lawyer-client r e l a t i o n s h i p that endured past interrogation, i t would allow the suspect to get l e g a l advice i n a language he can understand at the time when such advice i s c r i t i c a l . That advice, i t should be noted, would include information concerning the suspect's common law r i g h t to remain s i l e n t , and the presumption of innocence i n Canadian law. Suspects who wish to waive t h e i r r i g h t to counsel and/or wish to make statements to the p o l i c e would be helped to appreciate the consequences which flow from such actions. This i s the type of s i t u a t i o n contemplated i n the Charter, i . e . , t h i s i s what the exercise of the s. 10(b) r i g h t amounts to. Funds to operate such a center could be contributed by a c o a l i t i o n of groups across the country, since the center would serve a l l of Canada. If such a center were established, then i t would be resonable to expect that p o l i c e would d i a l the t o l l - f r e e number and hand the suspect the telephone, or at l e a s t give the suspect the t o l l - f r e e number and t e l l him the c a l l i s f r e e . Public l e g a l education could a l s o play a r o l e i n disseminating information about such a center (e.g., " d i a l 800-ESL-HELP"). Weighing ESL-speakers' confessions The biggest problems by far i n terms of the s. 10(b) r i g h t are those of communicating the r i g h t to suspects and enabling the e f f e c t i v e 188 exercise of the r i g h t , but the r e s u l t s of i n t e r r o g a t i o n a l s o r a i s e c e r t a i n issues since any inculpatory statements w i l l be entered i n evidence against the accused i n court. Besides the issue of waiver, discussed above, voluntariness and oppression are issues. The l i t e r a t u r e reviewed i n t h i s study suggested that c e r t a i n aspects of the i n t e r r o g a t i o n s i t u a t i o n may have a d i f f e r e n t i a l e f f e c t on suspects according to t h e i r ethnic o r i g i n , such as the threat of i n v o l v i n g family members or holding a suspect incommunicado. In the cases, we see no recognition of the existence of ethnic v a r i a t i o n which could a f f e c t the d e c i s i o n to confess, i n c l u d i n g the voluntariness of confessions. This would have to be approached a case-by-case basis, since the l i t e r a t u r e o f f e r s no way of a r r i v i n g at s p e c i f i c , r e l i a b l e expectations for members of various ethnic groups. Courtroom Interaction The issues i n v o l v i n g i n t e r p r e t a t i o n and i n t e r r o g a t i o n are somewhat more cle a r - c u t than those which a r i s e i n the courtroom s e t t i n g . The cases are v i r t u a l l y s i l e n t regarding courtroom i n t e r a c t i o n , l a r g e l y because f a c t - f i n d i n g i s what the court does, not what i t seeks to understand. However, there are some compelling studies to be found i n the s o c i a l science l i t e r a t u r e , and'they w i l l applied to the present research project's concerns. Waiving the r i g h t to the assistance of an i n t e r p r e t e r It i s i n l e g a l proceedings that the statutory r i g h t to the assistance of an i n t e r p r e t e r a r i s e s , and i t i s there that the r i g h t can be waived. Remembering that, to be v a l i d , waiver must be based on a f u l l appreciation of what the r i g h t e n t a i l s and what the consequences of 189 waiver might be, we can address the question of what that means i n r e l a t i o n to the s. 14 r i g h t . This i s not discussed anywhere i n the cases or i n the s o c i a l science l i t e r a t u r e , but the s o c i a l science point of view assembled i n the present study can be u t i l i z e d to a r r i v e at a s t a r t i n g point f o r such a discussion. Using an i n t e r p r e t e r involves c e r t a i n advantages, but also c e r t a i n disadvantages, according to the sources reviewed i n the present study, and perhaps knowledge of both i s necessary f o r there to be informed waiver. An acused who may choose to waive the i n t e r p r e t e r r i g h t should be aware of the type of problem found by O'Barr (1981) i n h i s research on the e f f e c t s of speech s t y l e i n the courtroom, v i z . , h i s speech may be negatively evaluated by the t r i e r of f a c t , with the r e s u l t i n g implications f o r c r e d i b i l i t y . He should a l s o be made aware of the fa c t that the type of language he i s l i k e l y to encounter i n the courtroom i s d i f f e r e n t from that which he i s accustomed to dealing with i n h i s d a i l y l i f e . Here, he should be t o l d both that ordinary words may be given d i f f e r e n t , t e c h n i c a l meanings; and that language i t s e l f takes on a more important r o l e than i t has i n everyday l i f e . He should be t o l d as well that i t i s not uncommon for i n d i v i d u a l s i n h i s p o s i t i o n to overestimate t h e i r a b i l i t y to go through a t r i a l without the assistance of an i n t e r p r e t e r . The above would be the least that an accused should know about the problems involved i n doing without i n t e r p r e t a t i o n . In ad d i t i o n , he might wish to use a party i n t e r p r e t e r , to provide simultaneous i n t e r p r e t a t i o n of others' speech, but give h i s own testimony without an i n t e r p r e t e r . There can be no informed waiver i f hi s r i g h t to both a party int e r p r e t e r and a witness i n t e r p r e t e r i s not explained to him. 190 The disadvantages of using an i n t e r p r e t e r should a l s o be explained. The l i n g u i s t i c l i m i t a t i o n s of the i n t e r p r e t e r a v a i l a b l e on that day should be taken i n t o account. The accused might even wish to conduct h i s own t e s t of the i n t e r p r e t e r ' s a b i l i t y i n the foreign language, since t h i s might bear on h i s d e c i s i o n e i t h e r to use the i n t e r p r e t e r or to request a d i f f e r e n t i n t e r p r e t e r . Also, the accused should be apprised of the p o s s i b l e "messenger e f f e c t s " involved i n having one's testimony translated i n t o non-native-speaker-like English ( i f that would be the case). It seems that, since some in t e r p r e t e r s , according to the interviewees i n the present study, are hardly better at speaking Eng l i s h than the people they i n t e r p r e t f o r , t h i s aspect of the i n t e r p r e t e r ' s l i n g u i s t i c a b i l i t y might a l s o influence the accused regarding waiving the r i g h t to i n t e r p r e t a t i o n . In p r i n c i p l e , the e f f e c t i v e n e s s of the i n t e r p r e t e r whose services are being waived may be a s i g n i f i c a n t f a c t o r i n any informed d e c i s i o n to waive the r i g h t to those s e r v i c e s . The r i g h t to have everthing t r a n s l a t e d Having everything translated i s both a due process issue and an e q u a l i t y issue, yet both the interview data and some of the cases point to the conclusion that t h i s expectation i s not always taken l i t e r a l l y by the judge. It seems, from a l e g a l point of view, that the accused can waive the t r a n s l a t i o n of some portions of the t r i a l , p a r t i c u l a r l y i f he i s represented by counsel. It i s arguable, however, whether an accused who i s unrepresented i s able to make informed decisions as to what parts of the t r i a l he does not need to know about. Any errors made i n t h i s regard surely ought to be i n the d i r e c t i o n of t r a n s l a t i n g more rather than l e s s of the t r i a l . In these instances too, i t may be that society 191 at large has an i n t e r e s t i n seeing to i t that a l l accused persons are " l i n g u i s t i c a l l y present" at every point i n t h e i r t r i a l s , since i t i s d e s i r a b l e neither that the g u i l t y go f r e e nor that the innocent be convicted. This l i n e of thinking can be applied as well to waiver of the r i g h t to the assistance of an i n t e r p r e t e r . C u l t u r a l d i f f e r e n c e s and courtroom communication The ESL-speaker, by v i r t u e of h i s ethnic o r i g i n , may be unfamiliar with the type of communication used i n the courtroom; t h i s may bear on hi s d e c i s i o n to waive the r i g h t to the assistance of an i n t e r p r e t e r . In p a r t i c u l a r , he may not appreciate what the r o l e of testimony i s , or how the t r i e r of f a c t makes decisions regarding the c r e d i b i l i t y of witnesses. He may be unaware of what type of burden the Crown must discharge, or what the standard of proof i s . These are important components of the communication which takes place i n the courtroom, and the a b i l i t y of the accused to p a r t i c i p a t e i n that communication i n every way i s c e n t r a l to the administration of j u s t i c e . Taking the complementary perspective, we may ask which features of the ESL-speaker 1s courtroom communication that are a t t r i b u t a b l e to h i s l i n g u i s t i c and ethnic background should be explained to the t r i e r of f a c t , per O'Barr's (1982) suggestion to that e f f e c t . A number of studies reviewed e a r l i e r point to the existence of such fa c t o r s , e.g., Seggie's (1983) study of accent, Rasicot's (1983) treatment of nonverbal communication, Kaplan's (1966) hypothesis regarding c u l t u r a l d i f f e r e n c e s i n r h e t o r i c , and Bennett and Feldman's (1981) f i n d i n g regarding the story structure of testimony. It might have to be l e f t to defense counsel i n each case to "educate" the court, since i t might not be p r a c t i c a l to seek to apprise the court of a l l the v a r i a b l e s . On the 192 other hand, through public l e g a l education i t might be po s s i b l e to r a i s e the l e v e l of consciouness i n society at large, and i n the l e g a l p r o f e s s i o n i n p a r t i c u l a r , regarding the very existence of c u l t u r a l d i f f e r e n c e s of t h i s sort, the r e a l i t y of t h e i r e f f e c t s , and the subtle, out-of-awareness nature of t h e i r operation i n the courtroom s e t t i n g . This might a l s o f a c i l i t a t e the use of such arguments i n p a r t i c u l a r cases. A few d i s t i n c t strategies can be i d e n t i f i e d i n addit i o n to l e g a l and f a c t u a l arguments made i n court by defense counsel. Greater use could be made of expert witnesses, inc l u d i n g not only l i n g u i s t s but a l s o i n t e r c u l t u r a l communication or other s o c i a l science experts. Though the Canadian cases reviewed i n t h i s study d i d not suggest that t h i s i s a popular approach at the present time, the examples found i n the studies by B r i e r e (1978), Gumperz (1982), and Liberman (1981) o f f e r excellent examples which could be used as s t a r t i n g p oints. A second strategy would be to construct a comprehensive o u t l i n e of c u l t u r a l factors which a f f e c t both in t e r r o g a t i o n and courtroom communication which could be re f e r r e d to by defense counsel when making arguments of t h i s sort. Such a t r e a t i s e might one day al s o be useful i f the court can persuaded to take j u d i c i a l n otice of c u l t u r a l f a c t o r s . Both expert witness testimony and i n t e r c u l t u r a l communication reference works of established r e l i a b i l i t y could be u t i l i z e d as an adjunct to l i n g u i s t i c t r a n s l a t i o n i n the i n t e r p r e t a t i o n of c u l t u r a l meaning, as i s implied i n the concept of the c u l t u r a l i n t e r p r e t e r . In the cases, there i s no awareness whown of the r e a l i t y of c u l t u r a l d i f f e r e n c e s i n the meaning of things and events, but the s o c i a l science l i t e r a t u r e i n t h i s area i s substantial and could be brought to bear on the weighing of evidence i n the courtroom. The 193 basic need i s to bring the m u l t i c u l t u r a l r e a l i t y of Canadian society i n t o the l e g a l process, i n c l u d i n g both l i n g u i s t i c d i v e r s i t y and c u l t u r a l d i v e r s i t y . The Charter o f f e r s a means of considerable p o t e n t i a l i n t h i s regard, but i t i s i n the nature of a t o o l which i s supplied without an i n s t r u c t i o n manual. Ideally, the present study has shown that such a manual both could be constructed and should be constructed. 194 Bibliography Althen, Gary. 1984. The handbook of foreign student  advising. Yarmouth, Mine : I n t e r c u l t u r a l Press. Anderson, R. Bruce. 1976. Perspectives on the r o l e of the i n t e r p r e t e r . In Richard W. B r i s l i n (Ed.), T r a n s l a t i o n :  a p p l i c a t i o n s and research, 208-228. New York: Gardner Press. Baker, Nicholas G. 1981. S o c i a l work through an i n t e r p r e t e r . S o c i a l Work, 26, 5, 391-397. Bennet, W. Lance and MArtha S. Feldman. 1981. Reconstructing r e a l i t y i n the courtroom. London and New York: Tavistock Pubications. Berger, Peter L. and Thomas Luckmann. 1967. The s o c i a l  construction of r e a l i t y . Garden C i t y , New York: Doubleday Anchor Books. Blum-Kulka, Shoshana. 1981. The study of t r a n s l a t i o n i n view of new developments i n discourse a n a l y s i s : the problem of i n d i r e c t speech a c t s . Poetics Today, 2, 4, 89-95 [ab s t r a c t ] . Bownen, Nargareta. 1980. B i l i n g u a l i s m as a factor i n the t r a i n i n g of i n t e r p r e t e r s . In James E. A l a t i s (Ed.), Georgetown U n i v e r s i t y round t a b l e on languages and  l i n g u i s t i c s , 201-207. Washington, D.C: Georgetown Uni v e r s i t y Press. B r i e r e , Eugene J . 1978. Limited E n g l i s h speakers and the Miranda r i g h t s . TESOL Quarterly, 12, 3, 235-245. Canaon, Carmen B. 1983. Using an i n t e r p r e t e r i n cross-c u l t u r a l counseling. The School Counselor, 31, 1, 11-16. C r y s t a l , David and Derek Davy. 1969. Investigating English  s t y l e . Bloomington, Indiana: Indiana U n i v e r s i t y Press. Danet, Brenda. 1980. Language i n the l e g a l process. Law  and Society Review, 14, 3, 445-564. D e l i s l e , Jean. 1980. Le bilinguisme du traducteur. In James E. A l a t i s (Ed.), Georgetown University round  table on languages and l i n g u i s t i c s , 208-212. Washington, D.C: Georgetown U n i v e r s i t y Press. Duff, Alan. 1981. The t h i r d language: recurrent problems  of t r a n s l a t i o n i n t o English. Oxford: Pergamon Press. G i l e , Daniel. 1979. Bilinguisme, interferences et 195 traducteurs(Bilingualism,interference and t r a n s l a t o r s ) . Traduire, 98, 1, 21-23 [ a b s t r a c t ] . Gold, David L. 1984. T r a n s l a t i o n vs. i n t e r p r e t a t i o n . Language Problems and Language Planning, 8, 1, 244-254 [abs t r a c t ] . Green, James W. 1982. C u l t u r a l awareness i n the human  services. Englewood C l i f f s , N.J.: P r e n t i c e - H a l l . G r i f f i t h s , John and Richard E. Ayres. 1967-68. A p o s t s c r i p t to the Miranda Project: i n t e r r o g a t i o n of d r a f t protestoers. Yale Law Journal, 77, 300-319. Grisso, Thomas. 1981. Juveniles' waiver of r i g h t s : l e g a l  and psychological competence. New York and London: Plenum Press. Gudykunst, William B. and Young Yun Kim. 1984. Communicating with strangers: an approach to i n t e r - c u l t u r a l communication. Reading, Mass.: Addison-Wesley. Gumperz, John J . 1982. Fact and inference i n courtroom testimony. In John J . Gumperz (Ed.), Language and  s o c i a l i d e n t i t y , 163-195. Cambridge: Cambridge Univ e r s i t y Press. Ha r r i s , Brian. 1978. The d i f f e r e n c e between natural and prof e s s i o n a l t r a n s l a t i o n . Canadian Modern Language  Review, 34, 3, 417-427. Hatch, Evelyn Marcussen. 1983. P s y c h o l i n g u i s t i c s : a second language perspective. Rowley, Mass.: Newbury House. Herbert, Jean. 1968. The i n t e r p r e t e r ' s handbook. Second e d i t i o n . Geneva: L i b r a i r i e de l ' u n i v e r s i t e Georg. Irving, B a r r i e . 1980. P o l i c e i n t e r r o g a t i o n : a case study of current p r a c t i c e . Research study no. 2. London:HMS0. Irving, Barrie and Linden Hilgendorf. 1980. P o l i c e i n t e r - rogation: the psychological approach. Research study  no. 1. London:HMS0. Johnson, John R. 1984. The r o l e of inner speech i n human communication. Communication Education, 33, 3, 211-222. Kaplan, Robert B. 1966. C u l t u r a l thought patterns i n i n t e r -c u l t u r a l education. Language Learning, 16, 1, 1-20. Kassin, Saul M. 1983. Deposition testimony and the surrogate witness: evidence for a "messenger e f f e c t " 196 i n persuasion. Personality and So c i a l Psychology  B u l l e t i n , 9, 2, 281-288. Law Reform Commission of Canada. 1984. Questioning suspects. Working paper no. 2. Ottawa: Minister of Supply and Services Canada. Liberman, Kenneth. 1981. Understanding Aborigines i n Aust r a l i a n courts of law. Human Organization, 40, 3, 247-255. McBarnet, Doreen J . 1981. Conviction: law, the state and  the construction of j u s t i c e . London: Macmi1lan. Me l l i n k o f f , David. 1963. The language of the law. Boston: L i t t l e , Brown. O'Barr William M. 1982. L i n g u i s t i c evidence: language,  power and strategy i n the courtroom. New York: Academic Press. Oundjian-Crosby, Jeanette and Colette Joy. 1980. Peux-tu me donner un " l i f t " ? (Can you give me a l i f t ? ) . Meta, 25, 3, 362-364. Parks, Gerald B. 1982. What language do in t e r p r e t e r s speak? Rassegna I t a l i a n a d i L i n g u i s t i c a Applicata, 14, 1, 121-135 [ab s t r a c t ] . Pousada, A l i c i a . 1979. Interpreting for language minorities i n the courts. In James E. A l a t i s and G. Richard Tucker (Ed.), Georgetown University round  table on language and l i n g u i s t i c s , 186-208. Washington, D.C: Georgetown Uni v e r s i t y Press. Rasicot, James. 1983. Jury s e l e c t i o n , body language &  the v i s u a l t r i a l . [No l o c a t i o n ] : AB Publications. Reiss, Katharina. 1982. Como averiguar o grau de di f i c u l d a d e de una traducao? (How can the degree of d i f f i c u l t y of a t r a n s l a t i o n be judged?). Letras de  Hoje, 15, 48, 7-19 [a b s t r a c t ] . Rokkan, E l i z a b e t h . 1980. Advanced t r a n s l a t i o n teaching. ELTJ, 34, 3, 224-226. Seggie, Ian. 1983. A t t r i b u t i o n of g u i l t as a function of ethnic accent and type of crime. Journal of M u l t i - l i n g u a l and M u l t i c u l t u r a l Devleopment, 2 & 3, 197-206. Sloukova, G i z e l a . 1980. Problemas s i c o l i n g u i s t i c o s en l a traduccion o r a l ( P s y c h o l i n g u i s t i c problems of o r a l t r a n s l a t i o n ) . Thesaurus, 35, 1, 161-166 [a b s t r a c t ] . 197 Smeleer, P. et a l . 1980. L i n g u i s t i c awareness of the t r a n s l a t i o n process. System, 8, 1, 59-70 [ab s t r a c t ] . Spencer, Jack W. 1983. Accounts, a t t i t u d e s , and s o l u t i o n s : probation officer-defendant negotiations of subjective o r i e n t a t i o n s . S o c i a l Problems, 30, 5, 570-581. Stewart, Edward C. 1972. American c u l t u r a l patterns: a  c r o s s - c u l t u r a l perspective. Chicago: I n t e r c u l t u r a l Press. S u l l i v a n , Thomas J . and Kenrick S. Thompson. 1984. Sociology: Concepts, Issues and Applications. New York: John Wiley & Sons. Task Group on Court I n t e r p r e t i n g . 1985. Toward a court  i n t e r p r e t i n g system i n B r i t i s h Columbia. [Vancouver, B.C.]. Thiery,, Christopher. 1982. Le bilinguisme v r a i (True b i l i n g u a l i s m ) . M u l t i l i n g u a , 1, 4, 203-212 [a b s t r a c t ] . Toury, Gideon. 1979. Interlanguage and i t s manifestations i n t r a n s l a t i o n . Meta, 24, 2, 223-231 [ab s t r a c t ] . van Eyken, A l b e r t . 1981. Meaning and language. The  Incorporated L i n g u i s t , 20, 3, 100-103. Wald, Michael et a l . 1967. Interrogation i n New Haven: the impact of Miranda. Yale Law Journal, 76, 1519-1648. Weber, Wilhelm K. 1984. T r a i n i n g t r a n s l a t o r s and conference  i n t e r p r e t e r s . Language i n Eduaction: Theory and  Practice 58. Orlando, F l o r i d a : Center for Applied L i n g u i s t i c s and Harcourt Brace Jovanovich. Weston, Martin. 1983. Problems and p r i n c i p l e s i n l e g a l t r a n s l a t i o n . The Incorporated Linguist, 22, 4, 207-211. Wodak, Ruth. 1980. Discourse analysis and courtroom i n t e r a c t i o n . Discourse Processes, 3, 369-380. 198 Case L i s t Brochu v. Tanguay (1982), 20 Sask.R. 119 (Sask. Ct.Q.B) Brosseau v. Reginam (1968), 65 W.W.R. 751 (S.C.C.) Gaio v. Reg. (1960-61), 104 C.L.R. 419 (H.Ct. Austr.) Hartely v. Fuld (1965), [1965] 2 A l l E.R. 653 (P.D.D. Div) In re C i t i z e n s h i p Act and i n re Abdul-Hamid (1979), [1979] 1 F.C. 600 (S.C.C.) Leiba v. Minister of Manpower and Immigration (1972), [1972] S.C.R. 600 (S.C.C.) Lussa v. The Health Sciences Centre and Director of Ps y c h i a t r i c Services (1983), 9 C.C.R. 350 (Man.Q.B) Matheson v. The Queen (1981), 59 C.C.C. (2d) 289 (S.C.C.) Nagotcha v. The Queen (1980), [1980] S.C.R. 714 (S.C.C.) Park v The Queen (1981), [1981] 2 S.C.R. 64 (S.C.C.) Re Faiva and Minister of Manpower and Immigration (1983) 145 D.L.R. (3d) 755 (F.Ct.App.) Re H i l t s and The Queen (1984), 14 C.C.C. (3d) 187 (Ont.H.Ct.) Re Weber and Ministe r of Manpower and Immigration (1976), 69 D.L.R. (3d) 473 (F.Ct.App.) R. v. Abraham (1977), 12 N f l d . & P.E.I.R. 216 (Nfld.Sup.Ct., Ct. of App.) R. v. Ahearn (1983), 10 C.R.R. 193 (P.E.I.Sup.Ct.) R. v. Attard (1958), 43 Cr.App.R. 90 (Ct.Crim.App.) R. v. Bauditz (1981), 6 W.C.B. 399 (N.S.C.A.) R. v. Beaule and Ragot (1977), 38 C.C.C. (2d) 237 (B.C.Co.Ct.) R. v. Berger (1975), 27 C.C.C. (2d) 357 (B.C.C.A) R. v. Blentzas (1983), 10 W.C.B. 357 (N.S.C.A.) R. v. Croke (1983), 19 M.V.R. 205 (NfId.Dist.Ct.) R. v. D. M. and J . P. (1980), 58 C.C.C. (2d) 373 (Ont.Prov.Ct.) 199 R. v. E v a l t a l i g a k (1984), [1984] N.W.T.R. 252 (N.W.T.Sc.Ct.) R. v Hatzopolous (1980), 27 CR. (3d) 56 (Que.S.C.) R. v. Heaslip (1983), 9 C.C.C. (3d) 480 (Ont.C.A.) R. v. H i j a z i (1974), 20 C.C.C. (2d) 183 (Ont.C.A.), leave to appeal to S.C.C. dismissed November 4, 1974 R. v. Johny and B i l l y (1981), 62 C.C.C. (2d) 33 (B.C.S.C.) R. v. Kam Wan Kwok et a l . (1984), 13 W.C.B. 55 (Ont.Prov.Ct) R. v. Lapierre (1980), 54 C.C.C. (2d) 408 (Ont.Dist.Ct.) R. v. Lapointe and S i c o t t e (1983), 9 C.C.C. (3d) 366 (Ont.C.A.) R. v. Lundigan (1984), [1984] Man. D. 5210-02 (Man.Q.B.) R. v. Marinello (1980), 4 W.C.B. 223 (Ont.Co.Ct.) R. v. McLean (1984), 12 W.C.B. 297 (Sask.Q.B.) R. v. McLellan (1983), [1983] Ont. D. Crim. Conv. 5210-07 (Ont.Dist'.Ct.) R. v. Magusud A l i (1965), [1965] 3 W.L.R. 299 (Cr.Crim.App.) R. v. Micheal Johny (1984), 13 W.C.B. 53 (B.C.S.C.) R. v. Nelson (1982), 4 C.R.R. 88 (Man.Q.B.) R. v. Petrovic (1984), 13 C.C.C. (3d) 416 (Ont.C.A.) R. v. P o t t i e (1980), 7 M.V.R. 36 (N.S.Co.Ct.) R. v. Powell (1984), 9 C.R.R. 54 (Alta.Prov.Ct., Crim.Div.) R. v. Randall (1962), 38 D.L.R. (2d) 624 (N.B.W.C.,App.Div.) R. v. Reale (1973), 22 C.C.C. (2d) 571 (S.C.C.) R. v. Richardson (1984), 13 W.C.B. 60 (Sask.Q.B.) R. v. Rudd (1983), 23 M.V.R. 218 (Sask.Q.B.) R. v. Sabourin (1984), 13 C.C.C. (3d) 68 (Man.C.A.) R. v. Sadjade (1982), 67 C.C.C. (2d) 189 (Que.C.A.) R. v. Sadjade (1983), 7 C.C.C. (3d) 95 (S.C.C.) 200 R. v Santinon (1973), 11 C.C.C. (2d) 121 (B.C.C.A.) R. v. Saulnier (No. 2) (1980), 53 C.C.C. (2d) 121 (B.C.C.A.) R. v. Schmidt (1984), [1984] Sadk. D. 5210-07 (Sask.Q.B.) R. v. Shields (1983), 6 C.R.R. 194 (Ont.Co.Ct.) R. v. Simon (1984), [1984] Sask. D. 5210-08 (Sask.Q.B.) R. v. Smith (1984), [1984] Ont. D. Crim. Conv. 5210-03 (Ont.Co.Ct.) R. v. Stewart (1972), 56 Cr.App.R. 272 (Cent.Crim.Ct.) R. v. Tanguay (1984), 27 M.V.R. 1 (Ont.Co.Ct.) R. v. Turkiewicz, Barrow and MacNamara (1979), 50 C.C.C. (2d) 406 (Ont.C.A.) R. v. Yensen (1961), 29 D.L.R. (2d) 314 (Ont.H.C.) Rex v. M i l i n a (1946), 2 W.W.R. 584 (B.C.C.A.) Sadowski v. The Queen (1963), B.R. 677 (Que.C.A.) Shajoo Ram v. The King (1915), 51 S.C.R. 392 (S.C.C.) The King v. Meceklette (1909), 15 C.C.C. 17 (S.C.C.) Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373 (Ont.Co.Ct.) Ward v. The Queen (1979), [1979] 2 S.C.R. 30 (S.C.C.) 

Cite

Citation Scheme:

        

Citations by CSL (citeproc-js)

Usage Statistics

Share

Embed

Customize your widget with the following options, then copy and paste the code below into the HTML of your page to embed this item in your website.
                        
                            <div id="ubcOpenCollectionsWidgetDisplay">
                            <script id="ubcOpenCollectionsWidget"
                            src="{[{embed.src}]}"
                            data-item="{[{embed.item}]}"
                            data-collection="{[{embed.collection}]}"
                            data-metadata="{[{embed.showMetadata}]}"
                            data-width="{[{embed.width}]}"
                            async >
                            </script>
                            </div>
                        
                    
IIIF logo Our image viewer uses the IIIF 2.0 standard. To load this item in other compatible viewers, use this url:
http://iiif.library.ubc.ca/presentation/dsp.831.1-0078247/manifest

Comment

Related Items