Research Report 14 - Deaf jurors' access to court proceedings via sign language interpreting: an investigation (by Jemina Napier, David Spencer and Joseph Sabolcec)

A project funded by the NSW Law Reform Commission and
the Macquarie University External Collaborative Grant Scheme.

2.1 This literature review provides an overview of issues relevant to this study, with a survey of key factors that need to be considered when assessing deaf jurors’ comprehension of the interpretation of courtroom proceedings. Thus we draw on research relating to linguistic, signed and spoken language interpreting in order to discuss legal interpreting and the role of the legal interpreter, legal discourse and interpreting for courtroom discourse, interpreting for jurors, legal text comprehension and comprehension testing.

2.2 Most research and discussion on legal interpreting focuses on court interpreting, with a reasonably large body of literature that discusses courtroom interpreting practice, the role of the court interpreter, and ethical dilemmas faced by court interpreters.¹⁸

2.3 There has been some discussion of other aspects of legal interpreting, such as solicitor-client interviews, police interviews, police interrogations and confessions, tribunals or immigration/refugee hearings.¹⁹

2.4 In Australia, there have been several publications which explore the cultural barriers for Aboriginal people in accessing court proceedings.²⁰ In all aspects of legal interpreting, the person typically requiring the interpreter is the victim, witness, defendant or complainant, although there are cases of deaf lawyers relying on signed language interpreters.²¹

2.5 In Australia, any interpreter who works in court must be accredited by the National Accreditation Authority for Translators and Interpreters (NAATI) at the professional interpreter level, which is the minimum standard for professional practice in Australia.

2.6 Much of the literature concerning legal interpreting focuses on the role of the legal interpreter, and the challenges of working in the legal system due to potentially conflicting expectations from different stakeholders involved in the process.

2.7 The case of Gaio v The Queen²² has been influential in determining the court’s view of the interpreter’s role in Australia. In this case, the High Court of Australia had to determine whether a confession to a patrol officer via an interpreter was admissible as evidence before a court, or whether the confession should be considered as hearsay because it was not obtained directly, but rather indirectly via an intermediary (ie, an interpreter). The debate focused on the role of the interpreter, in order to clarify this issue. The court concluded that if the interpreter translated ‘word by word’ or ‘sentence by sentence’ and remained faithful and accurate to the original message, then the translation should not be deemed as hearsay.

2.8 This judgment perpetuates the notion among legal professionals that the more literal a translation, the more correct it is likely to be, and that interpreters should function in ‘conduit’ mode, like a telephone, relaying the content of a message without having any influence on that message.²³ Realistically, however, interpreter practitioners know that in order to convey the content of a message effectively, they should function as a linguistic and cultural mediator and ensure that the disadvantaged minority language speaker has full access to court proceedings and understands what is going on.²⁴

2.9 In order to explore these differing perceptions, Banna²⁵ interviewed three signed and three spoken language interpreters, and three legal professionals, about their experiences with interpreting in the courtroom. The legal professionals and the spoken language interpreters were found to have similar expectations to those expressed in the Gaio case, in terms of the interpreter functioning in a conduit role. The signed language interpreters, however, leaned more towards the ally role, and were focused on ensuring equal access to court proceedings.

2.10 This approach is highlighted in another decisive case in terms of the interpreter role – that of Gradidge v Grace Bros Pty Ltd²⁶ in the New South Wales²⁷ Supreme Court. In this case, a signed language interpreter was held in contempt of court when she continued to interpret for an argument between counsel, after she had been directed to stop interpreting by the judge. Her rationale for continuing was that it was her role to provide access to everything spoken in the courtroom to her deaf client. After being taken to the Supreme Court, the contempt decision was withdrawn, as it was decided that the deaf client was entitled to have the argument interpreted as long as she was present in the courtroom, so that she could ‘see’ the argument the same way that everybody else could hear it.

2.11 In a study of British Sign Language (BSL) interpreters working in court, Turner and Brown²⁸ also found that the interpreters did not adhere to a conduit model of interpreting, and instead participated in co-construction of the message with their deaf clients. Thus, they suggest that a different perspective is needed with regards to the role of an interpreter in the courtroom. They advocate for recognition of interpreters’ linguistic and cultural expertise as coordinators of interaction between people who do not use the same language, as a means of enhancing the quality of the judicial process.

2.12 With respect to deaf people’s involvement in the legal system, there have been a number of publications that specifically discuss deaf people’s access to justice via signed language interpreters.²⁹ Katrina Miller and Vernon McCay have contributed significantly with their discussions of the potential linguistic barriers that deaf people face in the legal system.³⁰

2.13 All of these discussions have focused on the deaf person as a member of a minority group being disadvantaged in accessing the legal system. In all of these publications, the role of the interpreter has been considered in light of the position of the client as a participant in the legal system as a defendant, witness, or complainant. None have considered what the role of an interpreter might be in working with a juror. This is probably because non-English speaking people have not historically been allowed to serve on juries. Similarly, deaf people have traditionally been excluded from serving on juries. This situation is beginning to change, however, and the notion of interpreting for jurors is discussed further in paragraphs 2.38 - 2.42.

2.14 Regardless of the role of the client, legal discourse will always provide challenges for interpreters of any language. Legal discourse encompasses various relationships between language use and the realm of law. Forensic linguistics is the branch of linguistics that applies discourse analysis to legal contexts, and identifies clear features of linguistic behaviour.³¹ The challenge for interpreters does not only relate to legal terminology, but also to how language is used in legal contexts.

2.15 Legal language (or ‘legalese’) differs from colloquial language on lexical, semantic, and syntactic levels, and in particular, the nature of courtroom interaction influences the type of language used.

2.16 It is for this reason that the legal discourse used by lawyers and judges in the courtroom is often found to be too complicated for the layperson to comprehend. Berk-Seligson³² identifies a number of factors that lead to this level of complexity, including the practice of oral legalese often being written to be read aloud. Berk-Seligson refers to the work of Danet³³ in discussing nine lexical features of legal English: (1) technical terms; (2) common terms with an uncommon meaning; (3) words whose origin is Latin, French or Old English; (4) polysyllabic words; (5) unusual prepositional phrases; (6) doublets (combination of Anglo-Saxon words with French or Latin words); (7) formality; (8) vagueness; and (9) over-precision.

2.17 Berk-Seligson also refers to 11 syntactic features of legal English: (1) nominalizations; (2) passive constructions; (3) conditionals; (4) unusual anaphora; (5) whiz deletion (deletion of relative pronouns); (6) high frequency of prepositional phrases and their unusual placement between the subject and predicate of a sentence; (7) lengthy sentences; (8) unique determiners; (9) impersonality; (10) wide variety of semantically negative words; and (11) parallel structure in the linking of words and phrases by means of conjunctions ‘or’ and ‘and’. Berk-Seligson also states that discourse features in legalese which contribute to incomprehensibility include lack of cohesion and overly compact sentences.

2.18 Further features of legal discourse include information seeking, clarification, reframing, reformulation, paraphrasing, summarizing, option-presenting, questioning strategies, testimony as narrative, double negatives, hedges, hesitation fillers, polite forms, question-intonation statements, intensifiers, direct speech, and answering questions (“is it not true that…”).³⁴

2.19 Conley and O’Barr³⁵ investigated language use in trials, and noted that courtroom language is deliberately manipulated by lawyers in order to influence the credibility of witnesses. Strategies used include, for example, abrupt topic shifts and returns, use of tag questions (eg, isn’t that correct?), and use of silence (either witness’s silence treated as problematic or silence after testimony as inference of witness credibility).

2.20 In his analysis of courtroom cross-examinations, Drew³⁶ states that courtroom participants co-construct a hostile system of cross-examination, with contrasting versions of the story via turn design within interactional sequences of cross-examination, following a specialised sequence of questions and answers. Lawyers design questions to discredit witnesses, paying particular attention to inconsistencies in witness testimony. Witnesses behave in a guarded fashion and give defensive answers. In addition, lawyers will critique statements based on semantics (eg, knocking vs banging on the door) and use partial repeats to emphasise understanding. Drew concludes that this interaction is all designed for an “overhearing audience” (ie, the jury), who then make inferences about the events and then make their decision regarding guilt.

2.21 Gibbons³⁷ states that these particular forms of language use are adopted to maintain power in the court. He refers to the following strategies used by the court to maintain authority: (a) use of specialist language; (b) control of turn-taking in the courtroom; (c) formality; (d) address forms; (e) coercion in questioning; and (f) rules of interaction of the courtroom.

2.22 The complexities of legal discourse present two challenges of interest to this study in relation to the key research questions:

2.23 Several in-depth linguistic studies, with spoken and signed language interpreters, have explored the complexities involved when interpreting in court, with the analysis of pragmatics and discourse in courtrooms, and in particular the challenges of interpreting legalese.

2.24 Observation and analysis of English-Spanish interpreted interactions in the courtroom in the United States³⁸ and in Australia³⁹ have demonstrated that interpreters make a range of linguistic decisions during the interpreting process based on their understanding of courtroom discourse, which influences elements of the interaction, such as turn taking, pragmatic force, interruptions or clarifications, variation in register, discourse markers and politeness. Thus, as an inherent part of the process of interpreting, the interpreter alters the dynamics and therefore impacts on the interaction.

2.25 It has also been suggested that in influencing language and interaction in the courtroom, the interpreter challenges the authority of the court and the lawyers in the courtroom.⁴⁰ Gibbons⁴¹ suggests that lawyers often feel discomfort about working with interpreters due to loss of control over the discourse, misunderstanding the interpreting process, and the fact that an interpreter does not function as a conduit.

2.26 These studies of spoken language interpretation of courtroom discourse have also informed the practices of signed language interpreters in court, as the linguistic, pragmatic and power dynamics present challenges for all interpreters alike, regardless of the languages actually being used. There are two specific studies, however, that have advanced our understanding of signed language interpretation of courtroom discourse.

2.27 Brennan and Brown⁴² conducted a major study to assess the extent of deaf people’s access to justice in the UK. They observed British Sign Language (BSL) interpreters working in court, administered a survey of legal interpreters, and interviewed deaf people and interpreters about their legal interpreting experiences in police, court and other legal settings. They highlight the fact that signed language interpreters experience conflict in terms of perceptions of their role. However, the most interesting aspect of their study is their discussion of linguistic issues. In addition to the linguistic and discourse challenges faced by interpreters of all languages, signed language interpreters work bimodally, that is, between two languages that are expressed in different modalities (ie, spoken and visual-gestural). This presents further challenges for interpreters, as Brennan and Brown explain:

2.29 This issue is particularly relevant to the use of super-ordinate terms which often come up in court, such as ‘murder’, which do not have one established sign in BSL (or Auslan). Instead people usually give examples of what it could be, perhaps signing strangle, stab, shoot, or slit-throat,⁴⁴ and either with or without mouthing the word ‘murder’ and fingerspelling m-u-r-d-e-r. Fingerspelling and mouthing English words on the lips are common strategies used by signed language users, which Brennan and Brown discuss in depth, and which Brennan has discussed elsewhere.⁴⁵ Such strategies are referred to as ‘borrowing’. Brennan⁴⁶ describes how BSL users utilise fingerspelling and lip patterns (mouthing) to borrow English words strategically into BSL. The key points that she raises include:

2.31 Brennan and Brown,⁵⁵ and Brennan⁵⁶ essentially discuss court interpreters’ use of literal translation, borrowing from English as a linguistic strategy, in order to cope with legalese and to convey legal concepts effectively. Their research is particularly relevant to one of the research questions for this study, in relation to how accurately Auslan can convey legal concepts.

2.32 Another significant investigation of signed language interpreting in court was conducted by Russell.⁵⁷ She investigated the accuracy of Canadian English-ASL interpretations in courtroom discourse by contrasting the outcomes of simultaneous and consecutive interpreting approaches.⁵⁸

2.33 Spoken language interpreters typically work in simultaneous whispered mode, or long or short consecutive mode when working in court. Yet signed language interpreters typically work simultaneously as they work between a ‘silent’ and a spoken language, so there is no apparent intrusion between languages as is evident with spoken language interpreting. Research has identified that consecutive interpretations can be more accurate, due to the fact that interpreters have time to process the message and search for equivalence in the target language without interference from the source language.⁵⁹ Russell sought to investigate which technique would be more effective in court.

2.34 In her study, Russell⁶⁰ conducted four mock trials with real judges and lawyers, some with experience of working with spoken and signed language interpreters. The interpreters worked in either the consecutive or simultaneous mode. Three different discourse events were analysed:

2.35 Post-trial interviews with participants revealed that the lawyers and judges seemed to prefer experiencing interpretation in the simultaneous mode, especially during the cross-examination (for the lawyers). They stressed the importance of preparation with interpreters, and that interpreters should request permission from the judge to clarify information, or consult with one another. Deaf witnesses said that interpreters should be confident and well prepared. The expert witness felt that it was important to prepare with interpreters, and commented that they did not seem comfortable using the consecutive approach or note-taking. The interpreters also stressed the importance of preparation, and recognised that the quality of their interpreting was better when they used the consecutive mode.

2.36 In summary, Russell stated that interpreters should recognise the value of using consecutive or simultaneous interpreting techniques for different discourse types in court, and should negotiate carefully with lawyers and judges about what strategies to use and when.

2.37 Although informative in terms of signed language interpretation in court, these studies focused on interpreting for people who are accessing the justice system, in the form of witnesses, defendants or complainants. The results of the study set out in this Research Report are seminal, because it is the first linguistic study to examine signed language interpretation for deaf jurors in the court system.

2.38 In the interpreting literature, very little consideration has been given to interpreting for jurors, as people are typically not eligible to serve as jurors if they cannot understand the language of the court. Non-English speaking people can now serve as jurors in the state of New Mexico in the United States.⁶¹ Additionally, deaf people in some states in the US, and also in New Zealand, can serve as jurors, as it has been established that they are prevented from accessing the language of the court due to hearing loss, rather than the fact that they cannot use English (as discussed in paragraph 1.2).

2.39 There are different challenges for interpreters working with jurors, because the role of the client is different. The goal of the interpretation is also different.⁶² The role of a juror is:

2.41 In a volume dedicated to discussions of language, the law and deaf communities,⁶⁵ Mather and Mather explore the needs of deaf jurors in receiving information via English/ASL interpreters, and evaluate whether this should occur through meaningful interpretations or through the verbatim transmission of information. In effect, they revisit the point raised in Brennan and Brown’s work,⁶⁶ acknowledging that interpreters need to borrow from English in order to convey legal concepts, terminology, and key facts of the case so that jurors can sufficiently access information for deliberation purposes. To date, no linguistic studies have been carried out on the efficacy of interpreting for the purposes of a deaf juror, confirming that this study is pioneering a new aspect of research on courtroom interpreting

2.42 In addition to the analysis of interpretation accuracy and the evaluation of the effectiveness of English to Auslan interpretations in conveying information to deaf jurors, this study also focuses on juror comprehension. Very few studies have explored the actual comprehension of signed language interpretations generally,⁶⁷ let alone in court. Therefore key questions to be considered include:

2.43 In a recent article in an Australian newspaper, there was discussion around the role of juries, and more importantly in relation to this study, whether jurors understand directions from judges:

2.45 There have been several studies of the comprehension of legal texts which have highlighted that even hearing people listening directly to spoken English can experience difficulty in comprehending legal texts, such as police cautions or jury instructions. For example, Cotterill⁶⁹ found that the way that a police officer delivers a caution can influence its comprehensibility. Dumas⁷⁰ asserts that jurors experience difficulty in understanding the syntactic and semantic complexities of jury instructions, and that any misunderstanding can be minimized through the use of standardized jury pattern instructions.

2.46 The seminal study on juror comprehension was conducted by Charrow and Charrow,⁷¹ which tested and proved the hypothesis that standard jury instructions are not well understood by most jurors. First, they identified a series of complex linguistic constructions in 14 standard jury instructions, which they hypothesised would be difficult to understand. Then they measured the comprehensibility of these instructions by administering a test, whereby jurors listened to these instructions and paraphrased their understanding of what the instructions meant. Charrow and Charrow then re-wrote the instructions, eliminating the problematic constructions, and re-tested the jurors. They found that the re-written instructions were better understood. Subsequent related studies have also confirmed that jury instructions fail to communicate central points of the law.⁷²

2.47 In a more recent study, similar to that of Charrow and Charrow, which focused on written rather than oral comprehension, Hansen, Dirksen, Kuchler, Kunz and Neumann⁷³ combined three methodological steps to investigate the comprehensibility of rephrased syntactic structures in German court decisions. First, they analysed an annotated corpus of court decisions, press releases and newspaper reports on the decisions, in order to detect complex structures that distinguish court decisions from the other text types. Secondly, the complex structures were rephrased into two simplified versions. Finally, all versions were subjected to a self-paced reading experiment. Their findings correspond with those of Charrow and Charrow in suggesting that rephrasing greatly enhances the comprehensibility for the lay reader.

2.48 A particularly interesting study is that of Judith Levi⁷⁴, who conducted a linguistic evaluation of jury comprehension of instructions in her role as a linguistic expert witness. Levi analysed and discussed the language of the Illinois Pattern Instructions (IPI), which are used in the sentencing phase of a murder trial, in order to assess how well the language used in these instructions clearly communicated the legal concepts to the jury. The study served as a follow up to a survey conducted by Zeisel⁷⁵, which concluded that a consistent majority of jurors misunderstood central points of law concerning deliberations on the death penalty, resulting in an increased likelihood that the jurors will impose the death penalty. Levi’s linguistic analysis of the IPI also found:

2.50 In their analysis of the cognitive components of discourse comprehension, Graessar, Mills and Zwaan⁷⁸ identify the following key variables and processes that contribute to the comprehension of a message:

2.54 A possible solution would be to utilise only written text for comprehension testing. Unfortunately, although possibly highly fluent in Auslan, some deaf people may not have a sufficient literacy level in written English due to the sometimes significant educational disadvantage experienced by those with a hearing loss.⁸³ The ideal is to develop a test which is conducted in the same language as that of the information text (ie, people are tested in their first language).

2.55 Hughes⁸⁴ (1989) also presents a summary of the macro-skills involved in listening (comprehending), which include (i) listening for specific information; (ii) obtaining the gist of what is said; (iii) following directions; and (iv) following instructions. Hughes’s⁸⁵ suggestion for preparing test items is for the researcher to listen to the text to be used, noting what the candidate should be able to understand from the text. Hughes suggests that items (concepts) to be tested are chosen from parts of the text that are sufficiently far apart, so that a momentary break in concentration does not result in the candidate missing all the necessary information.

2.56 Hughes⁸⁶ also comments on response items and the challenge posed by multiple choice items, in that candidates have to hold the options in their memory as they listen to and assess the options. Although live presentation of material is usually closer to real life, this is outweighed by the benefit of uniformity in what is presented to the candidates if recorded.

18. For example, Angelelli, 2004; Carroll, 1995; Colin and Morris, 1996; Edwards, 1995; Fenton, 1997; Fowler, 1997; Gonzalez, Vasquez, and Mikkelson, 1992; Kadric, 2000; Kelly, 2000; Lane, McKenzie-Bridle, and Curtis, 1999; Mathers, 2006; Mikkelson, 1998, 2000; Morris, 1999; Robinson, 1994; Schweda Nicholson, 1994.

19. Barsky, 1996; Fowler, 2003; J I E Gibbons, (p ) 1995; Krouglov, 1999; Maley, Candlin, Koster, and Crichton, 1995; P�llabauer, 2004; R. Shuy, 1998; Zambrano, 2006.

20. Cooke, 2002; Eades, 2003; Fryer-Smith, 2002; Goldflam, 1995; Howard, Quinn, Blokland, and Flynn, 1993.

27. New South Wales (capital: Sydney) is an Australian State. Australia has six States and two self-governing territories with independent criminal jurisdictions.

29. Brennan, 1999; Fournier, 1997; K Miller, 2001; K Miller and McCay, 1994; Nardi, 2005; Russell, 2002; Stevens, 2005; Tilbury, 2005; G Turner, 1995; Wilcox, 1995.

39. S Hale, 1996, 1997a, 1997b, 1997c, 1999, 2001, 2002; S Hale and Gibbons, 1999.

40. Berk-Seligson, 1990; Brennan and Brown, 2004; J Gibbons, 2003; S Hale and Gibbons, 1999; S B Hale, 2004.

44. Sign language transcription typically involves the ‘glossing’ of signs using English words for established signs (eg, MOTHER), two words joined together to represent the meaning of one sign (eg, RUN-FAST) and letters divided by hyphens to indicate a fingerspelled word (e.g., L-E-G-A-L) (Johnston and Schembri, 2007).

58. “Consecutive interpreting is where a speaker/signer delivers their message in. discrete chunks, pausing for the interpreter to pass on each piece of the message. These segments can be as short as a phrase or as long as the entire speech, but are commonly around 300–600 words…Interpreters working consecutively often rely on note-taking to aid retention of information within each chunk”: Napier, McKee and Goswell, 2006, 15.

“Simultaneous interpreting is where the speaker/signer talks continuously, while the interpreter passes their message on as soon as they hear/see enough to understand…. When interpreters are working in simultaneous mode, they generally do not know what the speaker will say, or mean, until they have said it. So rather than starting their interpreting at exactly the same time as the speaker, there is always some time lag”: Napier, McKee and Goswell, 2006, 16.

72. Elwork, Sales and Alfini, 1982; Luginbuhl, 1992; Steele and Thornburg, 1988.

76. For example, “At one point… the judge first tells the jurors how to sentence the defendant to death and then how to give him a sentence that preserves his life—and then inexplicably restates how to sentence him to death. This death-life-death sequence clearly emphasizes the option of death, not only by repeating it twice but also by presenting it in the two most salient positions within a list, first and last” (Levi, 1993, 47).

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