With those of limited English proficiency, experts crucial

The recent removal of Spanish links from the White House website has set a new tone against multilingualism in general and the Spanish language in particular. As language doesn't exist in a vacuum but in its speakers, this new national ideology subverts pluralism and undermines language access. For limited-English-proficient people - or LEP - prior progress has been reversed, and the so-called "language barrier" has acquired a whole new meaning. Not only that, but the stakes have rarely if ever been higher. LEP people facing threshold inquiries and police interrogations have become more vulnerable to language-related derelictions. With such authorities, LEP individuals will gratuitously comply fully with requests to avoid physical or emotional hardship. They will "consent" to searches and "waive" constitutional and statutory rights, unaware of the full consequences of their actions. Despite the intervention of police officers assuming the role of interpreters, and even with the input of bilingual lead investigators conducting their own assessments of LEP suspects, the language barrier is unyielding. This is mainly police-use language methods with LEP suspects that are often unempirical, inadequate and unacceptable, and thus the results are unreliable. Despite their unreliability, the results are routinely admitted in court to the detriment of LEP defendants. More often than not, language violations will constitute legal issues that need to be raised by defense counsel. Only a professional linguist is qualified to identify, describe and measure the impact of the language methods used to secure consent to a search, a waiver of Miranda or other rights, the performance of a field-sobriety test or other result regulated or mediated by language, including a "confession," which leads to or assists with a prosecution. The more attorneys learn about the dynamics and rhetorical devices in police practices, the more they'll build toolboxes to represent their LEP clients more effectively. Under the new hostility to languages other than English and their speakers, the following needs to be re-examined: Interactions between police and LEP individuals - How are verbal interactions handled, characterized and reported by police? - Are the methods to collect, preserve and present language evidence viable and reliable? Fact finders - How are juries evaluating the credibility of LEP witnesses, given the tenor of our political discourse? To what extent will the rhetoric influence their deliberations and verdicts? - What powers will judges exercise to ensure impartiality and fair trials in the face of new attitudes about languages other than English? Language-access efforts - How much effort and public funds will be put into the implementation and use of: - Electronic systems in tandem with telephone interpreters to preserve language evidence? - Dash cams and body cams with audio capabilities to preserve language evidence? - Trained interpreters working in police stations and other out-of-court locations? - Expert witnesses in applied and forensic linguistics? Input of expert witnesses in applied linguistics Courts are starting to acknowledge that the use of expert witnesses in language matters can be a powerful vehicle toward achieving equal justice, language access and due process for LEP speakers. Both applied linguistics and forensic linguistics are well-established fields, boasting a body of knowledge acquired through academic research and a large community of practicing linguists and researchers. From every angle, both disciplines satisfy the Daubert standard and the test of Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), governing the admissibility of expert testimony in federal cases. The following excerpt, from Attorney General, petitioner, 104 Mass. 537, 544 (1870), makes much sense when assisting LEP clients: "The courts' power to appoint expert witnesses to assist the indigent defendant or the court itself is nowhere express; rather, it is grounded upon the long-standing belief 'that it is for the interest of the Commonwealth . that all proper investigations should be made, in order to guard against the danger of doing injustice to the prisoner.'" Where the expert can help A few domains of the expert witness in applied linguistics include: - Assessing English proficiency of LEP speakers - Assessing likelihoods as to whether LEP people waived constitutional and statutory rights knowingly and intelligently, gave consent to potentially unreasonable searches and seizures knowingly and intelligently, understood instructions to perform specific tests (FST, breath tests, etc.), signed documents without understanding their content and consequences, or understood an officer claiming to speak the LEP person's native language - Completing forensic transcriptions/translations - or FTTs - of custodial interrogations/noncustodial interviews and surreptitious (wire-tap) conversations in one or two languages - Assessing/reviewing others' work, including FTTs completed after 911 and jail calls, and written translations - Assessing/reviewing interpretation inside and outside the courtroom, including professional interpreters and inter-lingual actors on the phone or using video to interpret remotely, and checking trial transcriptions for appeals to assess the accuracy of court interpreters on testimony of LEP witnesses on the witness stand. Illustrative examples The following oversimplified examples illustrate some common issues. "Here are your rights. Sign your rights." A young Hispanic male charged with assault and battery with a dangerous weapon was interrogated in English by an Anglophone detective. Since the defendant could speak a few words in survival English, a bilingual officer who had been called to assist with the communication made no effort to intercede. The defendant ended up signing the Miranda waiver without knowing that what he was signing was a waiver and not a document to exercise his rights, as represented to him by the detective. While holding the waiver document, the Anglophone detective had said to the defendant repeatedly in English, "Here are your rights. Sign your rights." The LEP man signed under the impression that he would get some rights and protections. "It was in self-defense, you know, I didn't . ." The following example is from a forensic transcription/translation of a video-recorded custodial interrogation of a suspect charged with murder. After several hours into the interrogation, the police officer, acting as interpreter, added an incriminatory statement that the defendant never said: SUSPECT: "yo no puedo decir nada (porque yo no los)" Accurate translation: "I cannot say anything (because I don't/didn't to them)" ANGLOPHONE DETECTIVE: "You stabbed them." POLICE INTERPRETER (interpreting for LEP suspect): "los pu§alastes" (sic) Accurate translation: "You stabbed them" SUSPECT: "No, no, no los pu§alé, grave, no los pu§alé." Accurate translation: "No, no, I didn't stab them - badly, I didn't stab them." POLICE INTERPRETER: "It was in self-defense, you know, I didn't ." NOTE: The suspect never said "it was in self-defense, you know, I didn't," the statement attributed to him in the last line. "I'm going to search your vehicle, OK?" A police officer pulls over a Hispanic LEP driver and, in an assertive way, tells him in English, "I'm going to search your vehicle, OK?" The driver steps out of his car, knowing that's what he's supposed to do. Without the ability to understand English, the LEP suspect is expected to perceive the officer's authoritarian presence by his prosodic and paralinguistic features, such as his tone, the volume of his voice, inflections, body language, facial expressions, uniform, gear and holstered firearms, and feel compelled to comply, cooperate and acquiesce. Conclusion Language violations do not need to culminate in unjust dispositions, false confessions and improper convictions. There are ways to mitigate the harm from unfair practices. ----- Pilar Cal-Meyer is a credentialed expert witness linguist at the Trial Court. She specializes in forensic transcription/translation of recorded interactions between police officers and LEP defendants mediated by interpreters. Published: Tue, Sep 19, 2017