Equal access to the courts in translation: a corpus-driven study on translation shifts in waivers of counsel

ABSTRACT

As the number of limited English proficiency speakers in the United States continues to increase, court administrators face mounting pressure to ensure that services are provided to linguistic minorities and that the availability and adequacy of these services meet this growing need and provide equal footing to non-English-speaking litigants. Several states now provide legal forms and documentation in multiple languages in order to provide greater transparency and access to the legal system and to ensure due process for non-English-speaking parties. The translation process and quality control/assurance mechanisms, however, vary across these programs. This corpus-driven study examines translations of court-provided waivers of counsel. The results reveal shifts potentially attributable to a residual effect of the source language or to differing legal systems. Problematic target language renditions at the lexical and syntactic level potentially alter the end user’s ability to understand the performative nature of the source text. Changes to the (perceived) function in the target language may hinder equal access to the legal system. The results raise important questions related to ethics, equal access, and due process, while also serving as a step toward understanding the multilingual legal environment in the United States.

KEYWORDS:

• Language access
• legal translation
• corpus
• due process

Disclosure statement

No potential conflict of interest was reported by the author.

Note on contributor

Christopher D. Mellinger holds a Ph.D. in Translation Studies and a M.A. in Translation (Spanish) from Kent State University. He is Assistant Professor of Spanish at Walsh University, where he teaches medical translation and interpreting as well as courses on Spanish for healthcare. Mellinger is the managing editor of the academic journal Translation and Interpreting Studies (TIS). He is the co-author of a research methods volume, titled Quantitative Research Methods in Translation and Interpreting Studies (Routledge) with Thomas A. Hanson. His research interests include translation and cognition, translation process research, translation technology, and quantitative research methods.

ORCID

Christopher D. Mellinger http://orcid.org/0000-0003-4915-8821

Notes

1. This act was introduced by Pub.L. 95-539, § 2(a), (1978), as amended by Pub.L. 104-317, Title III, § 306, Title IV, § 402(a), 110 Stat. 3852, 3854 (1996). For an authoritative overview of language services within the US court system, see Dueñas González et al. (2012).

2. The discussion in this paper is focused on spoken language translation and interpreting; however, the professionalization of signed language interpreting in the United States may, in fact, pre-date that of its spoken counterpart. For additional information related to the development of sign language interpreting, see Swabey and Mickelson (2008) and Roy and Napier (2015). For its role in legal settings, see Russell and Hale (2009).

3. The 2016 Justice Index lists 30 states that make translated versions of electronic forms available on their website and indicates that 23 states have provided at least some translation of the court’s website to describe the availability of these documents. These raw counts, however, do not reflect the varying degrees to which this information is available, or consider the number, type, quality, or function of these documents.

4. In addition to largely descriptive texts, Šarčević (2005, 2012) also outlines two other text types: prescriptive texts and a hybrid of the two. Taken together, these three classifications are useful to the understanding of how a text will function, but also demonstrate the potential for conflicting perceptions of its use.

5. See, e.g., Gideon v. Wainwright, 372 US 335 (1963).

6. This line of argument is gaining considerable attention in legal cases. See Miller, Davis, Prestidge, and Eggington (2011), Molina (2008), and Shue (2011) for an overview of language access issues related to both translation and interpreting in the US court system.

7. This latter suggestion seems to run counter to findings by Faber and Hjort-Pederson (2013), who find that translators often do not opt for implicitation as a translation strategy.

8. For a review of competency and waivers of the right to counsel and for pro se representation, see Capie (2015). See Rogers (2014) for a review of right to counsel laws in the United States.

9. See work by Kurzon (1986) and Trosborg (1991) for more related to hereby as a performative lexeme.

10. The Language Access Plan does not explicitly define what constitutes ‘direct translation’. For insight into the challenges of exact equivalence in legal translation, particularly in the context of the European Union, see Šarčević (2015).