The Federally Certified Court Translator : A Chimera Hiding in Plain Sight

“The best beloved of all things in My sight is Justice …”

No country is immune from contradictions. The United States is no exception. That a nation engendered from the noblest ideals and aspirations of the Enlightenment would deny a fair portion of its inhabitants due process until almost two centuries had passed since its inception is particularly noteworthy and curious. For it was throughout this entire period that any of the legion of unfortunate souls living in the continuously expanding territory north of Mexico and south of Canada unfamiliar with the English language could be arrested, incarcerated, tried, convicted, and sentenced in a U.S. court while remaining oblivious of the proceedings resulting from whatever accusations, charges, or imputations had been brought against them.1

Such a prolonged shortcoming of American justice was finally remedied—at the federal level, anyway—during a session of the 95th Congress, when, with no discernible pomp or fanfare to properly reflect the gravity of the accomplishment, president Jimmy Carter enacted Public Law 95-539, christened as the Court Interpreters Act, on Oct. 28, 1978.2 Its stated purpose, laid out prosaically in the preamble, reads:

To provide more effectively for the use of interpreters in courts of the United States, and for other purposes.

Having now become law, the act, sans preamble, was incorporated as §§ 1827, 1828, and 602 of Title 28 of the United States Code, where, in the entirety of its 2,565 words, the terms “translation” and “translator” are, conspicuously and deliberately, absent.3 More on this later. For now, a review of some fundamentals is in order.

Back to School

Every trade and every craft generates its appurtenant jargon. While the terms interpretation and translation are often conflated by the lay public,4 there are pronounced distinctions between the two enterprises. Interpretation, in its purest sense, pertains to the transfer of one language’s message to that of another language orally; translation, the same, but textually. Thus, a person speaking in one language wishing to be understood by a person that speaks a different language requires the intercession of an interpreter who, through the process of interpretation, conveys the message in a language understood by the intended listener. Conversely, a document written in one language for dissemination in another requires the interces- sion of a translator who, through the process of translation, makes the message understandable for the intended reader.

Naturally, hybrid situations arise where the two activities overlap, such as when the meaning of a text in one language is transferred orally in another (known as “sight translation”) or when the meaning of an utterance in one language is memorialized in writing in another (a translation of a recorded speech or conversation, for example). Despite these partial conjunctions, the differences between the two activities of interpretation and translation, as well as the skill set required to perform each competently, are sufficient that academic institutions have, historically and traditionally, regarded them as two separate disciplines,5 each offered as an independent academic track.6 Accordingly, the various bodies that oversee the regulation7 and certification of interpreters and translators in the United States mirror this demarcation.8

Another category that is important to highlight here is the case of transcription, which is defined as the written record of spoken words and utterances in the same language in which they are spoken or recorded. Examples include the transcripts of court proceedings kept by court reporters and the transcripts of historical speeches or proceedings of every stripe. One variant of transcription of particular interest here, which blends the frontiers of interpretation and translation as such, involves the forensic transcription of recorded statements or conversations in their original language and their translation into English for submission as evidence in judicial proceedings, whether civil or criminal.

It is hoped that the cursory explanation above has already impressed upon the reader that interpretation and translation are to be regarded as two independent disciplines, a distinction not lost on a now-deceased former member of the U.S. House of Representatives serving the interests of the Sixth Congressional District of Kentucky. June 13, 1978, marks the day that John Bayne Breckinridge introduced a piece of legislation designated as H.R. 13118 in the same 95th Congress that would end up adopting the Court Interpreters Act later that year. The aspiring bill was summarized as follows:

Federal Translation Coordinating Council Act – Establishes as an independent organization in the executive branch the Federal Translation Coordinating Council. Requires the Council to: (1) make such recommendations as may be necessary to coordinate all Federal programs, activities, and endeavors involving translation; (2) determine, evaluate, and, where possible, improve the quality and quantity of translation available to interested persons; (3) determine the number and capabilities of translators whose services may be available to the Federal Government; (4) determine which institutions of higher education in the United States provide training in skills required for translation; (5) determine the needs of the Federal Government for translation services; and (6) determine such principles, standards, and procedures for translation as the Council may deem appropriate

Requires the Council to issue a report to the President, the Congress, and the Secretary of State.

Provides for the termination of the Council.9

That final stipulation would prove prophetic, as the bill arrived stillborn, perhaps the result of an unspoken fear that, had it passed legislative scrutiny and become law—like its fraternal twin did later in October—the slew of unfortunate individuals facing the prospect of having to cite and recite the baroque tongue twister that could have been the Federal Translation Coordinating Council Act would erupt into open rebellion.10 Whatever the reason for its demise, this arcane piece of proposed legislation remains to this day the closest that this revered nation has come to adopting a comprehensive federal standard regulating the profession of translation and the certification of translators.11 Had it been enacted, a great deal of the confusion and distortion now circulating about the qualifications of interpreters vis-à-vis translators and their respective roles in the federal courts would likely have been remedied. Alas.

To the extent that nature abhors a vacuum, the void created in the absence of a federal translation standard elevated the status of the federally certified court interpreter in the eyes of lawyers—defense lawyers, in particular—and judges. Some federal court interpreters took advantage of the situation, advancing claims that not only were they the only ones qualified to interpret in federal courts,12 but that they were the only ones qualified to proffer evidentiary translations, as well.13 Defense attorneys took note, frequently impugning expert witness testimony and evidence submitted by otherwise qualified translators on the specious grounds that they were not federally certified court interpreters 14 Unsuspecting judges would either disqualify translators or disallow them from offering expert testimony for lack of “proper” federal qualifications. A law originally intended to further justice ironically ended up contaminating it through the actions of a few bad actors. In the interest of restoring justice, we will now set this warped record straight.

The Interpretation and Translation Industries in the United States: Welcome to the Jungle

Having laid the foundation preceding this section, those reading this article must brace themselves for the statement that follows. The state of the regulation, qualification, certification, and oversight of the interpretation and translation industries in this country can be described without any pretense of hyperbole as primeval. As a result, widespread ignorance and confusion revolving around the qualifications of interpreters and translators abound. As we saw earlier, some of these unfortunate misunderstandings have crept into the federal judiciary.

As of this writing, there is no universal, comprehensive, all-embracing, transferable credential or standard as regards the qualifications and certification of either interpreters or translators in the United States, whether in the private or public sectors. None. Regulation of the interpretation and translation industries in this country is, to phrase it metaphorically, a proliferation of competing fiefdoms—but no king or queen.

We will first address the certification and oversight of court interpreters in the United States, particularly of those serving in federal courts of law, as they enjoy the admiration—fully earned and fully deserved—of the lay public, of fellow interpreters and translators, of attorneys, and, above all, of the judges they serve so assiduously.

Only one explicitly federal standard exists as regards the enterprise of interpretation. Enshrined in the Court Interpreters Act, its scope, as its name suggests and its preamble states in clear and emphatic terms, is restricted exclusively to the certification and oversight of interpreters providing interpretation services in U.S. courts. To paraphrase, federally certified court interpreters, highly skilled and regarded as they are, are certified, only and exclusively, to provide interpretation services in United States courts.15 Some reciprocity arrangements are available to them to provide their in- terpreting services in select state courts without having to undergo a certification process from scratch, but these vary from state to state.16 Beyond that, were they to seek positions as interpreters or translators at the U.S. Department of State, say, or as contract linguists or language analysts at the FBI, or as language professionals at the United Nations (UN) or the Organization of American States (OAS), or as medical interpreters at any hospital or health-care facility having a formal in-house staff of interpreters, and so forth, they would nevertheless need to submit to each respective entity’s own internal language testing and credentialing protocol regardless of their extant qualifications and certification as federal court interpreters.

To reiterate, every federal, state, and local entity, as well as every private entity, with a formal in-house corps of language professionals—whether interpreters, translators, or a combination of these— independently tests and qualifies language-proficient candidates according to its internal norms and policies irrespective of every other entity. With the exception of reciprocity referenced in the previous paragraph, in spite of their vaunted credentials, federal court interpreters expecting blanket acceptance at any other interpretation or translation entity within the federal government based on the strength of their extant federal certification will meet certain disappointment.

As for the federal regulation and certification of translators in the United States, we enter an open weed field, albeit with some fencing.17 One highly regarded and coveted certification is offered by the American Translators Association (ATA),18 which grants translators wishing to obtain a recognized and respected credential a certification earned following the successful translation of test passages administered under controlled conditions and subsequently graded anonymously by a panel of qualified translators who determine whether the candidate delivers what they deem to be a competent and professional-level translation. The tests are offered in a multiplicity of language pairs, one of which is always English. Moreover, certifications are granted separately for each direction of a translation, so that candidates earning a certification for translating from English into French, for example, must sit for and pass a separate examination if they seek certification for translating from French into English. The credential is well respected and highly regarded, but, as the ATA’s name suggests, it is a national body, not a federal one. As a professional association of translators and interpreters, it derives no authority from either the executive, legislative, or judicial branches of the federal government.

Another well-respected organization is the National Association of Judiciary Interpreters and Translators (NAJIT), founded in the same year that delivered to us the Court Interpreters Act. For a time, it had the laudable accomplishment of establishing “a rigorous certification exam from 2001 to 2012, but this certification program was discontinued, as certification became available through the state courts across the country.”19 As with the case of the ATA, it, too, is a national body, not a federal one.20

Like the federal court interpreter, a translator possessing the certification granted by the ATA in a language pair, or several language pairs, cannot expect blanket acceptance from any entity that enlists the services of qualified translators—whether private, local, state, or federal. Thus, even an ATA-certified translator seeking to provide services as a contract linguist or as a language analyst for the FBI, for example, must first submit to and pass that agency’s proprietary language test battery.21 As would an FBI linguist wishing to secure a contract or employment with the U.S. Department of State’s Office of Language Services, either as a translator or interpreter, be subject to the that agency’s tests. In fact, a person lacking ATA certification, or any other recognized translation credential, could be hired or contracted by either the U.S. Department of State or the FBI,22 provided that they first passed the proprietary language test battery and qualification process that each requires.23

The myth of the carte-blanche interpreter and translator is now slain.

The Federally Certified Court Translator [sic]

So then, where does this leave us for the purposes of justice? In the face of the chimera that is the federally certified court translator, where may the federal courts turn to for guidance or clarification or, at least, a putative federal standard as regards the qualifications and certification of translators? As it turns out, the most definitive pronouncement is hiding in plain sight and offered by none other than the federal courts themselves.

The various volumes comprising the Guide to Judiciary Policy (henceforth, the Guide) govern the operations of the federal judiciary.24 Volume 5 of the Guide25 devotes itself entirely to the oversight of federal court interpreters.26 Its policies and guidelines “are promulgated by the Director of the Administrative Office of the U.S. Courts (AO) as authorized by the Court Interpreters Act….”27 Said director “shall prescribe, determine, and certify the qualifications of persons who may serve as certified interpreters.”28

Amid a host of considerations attending to the needs and management of federal court interpreters in U.S. courts, the matter of the presentation of translated evidence is not addressed until the very end of said Volume 5, where we find:

§ 550.10 English Language Requirement

(b) When an evidentiary document is submitted to the court in a language other than English, the presiding judge may issue an order to the party submitting the documents that requires the documents to be filed in English. If required, translation of evidentiary documents is the responsibility of the party tendering the documents to the court. [emphasis added]

Note that the language explicitly excludes court interpreters by placing the onus of translation on “the party submitting the documents.”29 And then in a later subsection, in what is effectively the locus of this article, which addresses both the translation of documents filed with the federal courts and what constitute qualified translators, we come upon the most definitive pronouncement on the qualifications of translators in the entire federal canon:

§ 550.20.10 Finding Qualified Translators

(a) While it is generally expected that all documents filed with the court will be in English, occasionally there is a need to have documents translated into English. The Court Interpreters Act does not address written translation requirements, and the Federal Court Interpreter Certification Examination (FCICE) tests high-level interpreting skills in both English and Spanish but does not test for translation skills

(b) Qualified translators can be located through the American Translators Association or any other organization that tests translation ability in the appropriate language combination, such as:

• the Language Services Unit [sic]30 of the State Department, or

• the Language Services Section of the Federal Bureau of Investigation. [emphasis added]

Volume 5 of the Guide closes with a reiteration of Subsection 550.20.10(a) cited above:

§ 550.20.40 Payment Responsibility for Translations and Transcriptions

(a) Translations and transcriptions are not within the scope of the Court Interpreters Act, and payment for such services may not be funded from the general authorization for contract court interpreting. [emphasis added]

(b) Local funds should be used to award a contract for translation and transcription services.

In the face of such explicit language that leaves little room for any meaningful analysis, we bring this section, this article, and over four decades of misunderstandings to an overdue close.

In Conclusion

It remains unlikely that Breckinridge’s bill will ever be resurrected. Perhaps something better may one day rise from its ashes. Time will tell. Still, and in the absence of a comprehensive federal translation certification standard, the federal courts have tacitly placed the qualifications of translators working at the U.S. Department of State and the FBI and those earning certification from the ATA on equal footing with the qualifications of federally certified court interpreters and with ample elbow room for their peaceful coexistence in the service of justice. Imperfect as it is, such an acknowledgement by the federal courts will have to serve for the time being as a suitable and surrogate federal certification for translators. Deo gratiam habeamus. 

Francisco Díaz is a career English-Spanish editor, translator, and forensic transcriptionist/translator providing language services in both the public and private sectors. He is an independent researcher and author of The Elements of Bilingual Style and Los elementos del estilo bilingüe, both of which are effective remedies for insomnia.

Endnotes

1It would be difficult not to pin such a fundamental oversight of justice on anti-immigrant sentiment that has pervaded certain elements of the national consciousness from its earliest days, but to explore the historical and sociological aspects of this phenomenon would far exceed the scope of the present article. Moreover, it would require a different author. We will relegate this unhappy circumstance to a mere footnote, happily.

2A Saturday. One cannot help but admire President Carter’s sense of moral urgency. After an already two-century-long lapse of justice, signing the bill into law could have surely waited until Monday.

3It was expanded 10 years later by the section comprising Title VII of the Judicial Improvements and Access to Justice Act, Public Law 100–702, christened as the Court Interpreter Amendments Act of 1988, which adds an additional 1,520 words in which two key terms remain, conspicuously and deliberately, absent.

4For an outstanding example, look no further than Rule 604 of the Federal Rules of Evidence: “Interpreters: An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.” [emphasis added]

5A fact eloquently captured in the first paragraph of § I of Chapter 3 of the Federal Court Interpreter Orientation Manual and Glossary published by the Administrative Office of the United States Courts, last revised Sept. 2, 2020: http://www.uscourts.gov/sites/default/ files/federal-court-interpreter-orientation-manual_0.pdf.

6A few institutions of higher learning combine them into one field of study. Though this approach is not intrinsically incorrect, it should be noted that it is by far the exception among academia worldwide.

7Inchoate at best. The word is used here with extraordinary latitude as it applies to the United States, as we shall see.

8We exclude from here intermediary and sign language interpreters, as their activity is confined within a single language. Their talents and qualifications are fully recognized here, nonetheless.

9Quoted verbatim: http://www.congress.gov/bill/95th-congress/ house-bill/13118?s=1&r=13.

10Say it three times in a row, if you dare. It clearly stood no chance against the Court Interpreters Act, which can be heard chuckling in amusement to this day.

11The bill’s remains rest in peace amid a collection of Breckinridge’s papers housed in a library at the University of Kentucky.

12A privilege fully earned and never in dispute.

13A practice repeatedly and vehemently censured by the Administrative Office of the United States Courts (whose authority derives from the Court Interpreters Act) and discouraged by the National Association of Judicial Interpreters and Translators (NAJIT) in its position paper titled General Guidelines and Requirements for Transcription Translation in a Legal Setting for Users and Practitioners, revised 2019: http://www.najit.org/wp-content/ uploads/2016/09/Guidelines-and-Requirements-for-TranscriptionTranslation.pdf.

14Easily accomplished by checking the National Court Interpreter Database (NCID), in which the names of federal court interpreters certified after passing the Federal Court Interpreter Certification Examination (FCICE) are automatically registered in its database: http://www.uscourts.gov/services-forms/federal-courtinterpreters/national-court-interpreter-database-ncid-gateway.

15The Administrative Office classifies two additional categories of interpreters—professionally qualified interpreters and language skilled/ad hoc interpreters—but these will not be treated here in detail for the sake of brevity. Additional details may be found at: http://www.uscourts.gov/services-forms/federal-courtinterpreters/interpreter-categories.

16These will not be explored here since they exceed the focus of this article, which seeks to concentrate on what is germane to the federal theater.

17“Unlike some professions in the United States (medicine and law, for example), translation is relatively unregulated. Requirements for being a practicing translator are not uniform and are largely left up to the translator’s employer or translation agencies. “Indeed, there is no all-purpose certification available to translators comparable to passing the bar exam or the medical boards.” See U.S. Department of State’s publication titled Guidance on Becoming a Professional Translator: http://www.state.gov/wp-content/uploads/2019/06/ Guidance-on-Becoming-a-Professional-Translator.pdf

18Founded in 1959, nearly 20 years before the enactment of the Court Interpreters Act.

19NAJIT, http://www.najit.org/resources/the- profession/#certification.

20There are numerous other national professional associations attending to interpreters and translators which are not explored here. The point worth bearing in mind is that none are federal entities.

21A highly respected credential in its own right, as it demands proficiency in both translation and interpretation. Moreover, as for the translation component, whereas ATA certification is granted on a strictly pass/ fail basis, the FBI’s Foreign Language Test Battery translation component is graded on a calibrated proficiency scale as established by the Interagency Language Roundtable. See Federal Bureau of Investigation, http://www.fbijobs.gov/sites/default/ files/2022-05/Independent%20Contract%20 Linguist.pdf and www.govtilr.org/Skills/ AdoptedILRTranslationGuidelines.htm

22Both legitimately federal entities and both of whose respective translation tests are of at least a comparable level of difficulty and complexity as those administered for ATA certification. See letter from Renee M. Meyer, National Security Agency/Central Security Service Senior Language Authority, published in the Letters to the Editor section of The ATA Chronicle, June 2002, Volume XXXI, Number 6, p. 9, from the lower middle column through the middle of the third column.

23As a general rule, the U.S. State Department’s Office of Language Services prefers that translator candidates have at least five years of what it deems to be professional translating experience before sitting for its translation test. Possessing ATA certification in any language pair, though preferred, is not required. See U.S. Dept. of State: http://www.state.gov/translationlinguists and http://www.state.gov/wpcontent/uploads/2019/06/Guidance-onChoosing-Your-Moment.pdf.

24Save for the Supreme Court of the United States, per § 130 of Volume 5 of the Guide to Judiciary Policy.

25Last revised Apr. 15, 2021, see U.S. Courts: http://www.uscourts.gov/sites/ default/files/guide_vol05.pdf.

26It is also referenced as Appendix II of the Federal Court Interpreter Orientation Manual and Glossary, p. 38: http://www.uscourts. gov/sites/default/files/federal-courtinterpreter-orientation-manual_0.pdf

27Guide to Judiciary Policy, Volume 5, Chapter 1, § 120(a).

28U.S. Courts: http://www.uscourts.gov/ services-forms/federal-court-interpreters.

29A policy supported by the National Association of Judicial Interpreters and Translators (NAJIT), as it would create a decided conflict of interest for the court interpreter. See NAJIT’s position paper titled General Guidelines and Requirements for Transcription Translation in a Legal Setting for Users and Practitioners, revised 2019, pp. 5–6, under the subheading titled “THE TTE AS INTERPRETER?”: http://www. najit.org/wp-content/uploads/2016/09/ Guidelines-and-Requirements-forTranscription-Translation.pdf

30The name is stated as the Office of Language Services in the U.S. Department of State’s website: http://www.state.gov/ bureaus-offices/under-secretary-formanagement/bureau-of-administration/ office-of-language-services/