Community and Court Interpreters of Ohio

PROPOSED RULES OF SUPERINTENDENCE

Rule ___. Appointment of Qualified Interpreter in Actions Initiated by the state of Ohio

I. Applicability.

(A) This rule shall apply in civil and criminal cases which have been initiated by the state of Ohio, and:
(1) where a party or witness requests an interpreter; or
(2) if the court concludes that a party or witness cannot speak or understand the English language such that the services of an interpreter would permit effective participation in a court proceeding.

(B) The court should conduct an examination of the party or witness on the record and ask primarily open-ended questions to determine whether the services of an interpreter are required pursuant to Section II of this rule.

(1) proceedings which are expected to last two or more hours if continuous simultaneous or consecutive interpretation, will be required;
(2) in the case of sign language interpreters, two interpreters may be appointed for hearings lasting less than two hours depending on the circumstances and the complexity of the case;
(3) trials and evidentiary hearings in order to assure that the quality of interpretation does not decrease due to interpreter fatigue; or
(4) proceedings involving a non-English speaking defendant if there will be any non-English speaking witness(es).

(D) Any individual (other than a witness) who is entitled to an interpreter may waive his/her right to an interpreter. Such waiver shall be accepted only if the court has conducted an appropriate inquiry using an interpreter and only after the individual has an opportunity to confer with counsel. The court should permit the waiver to be retracted at any stage of the case or proceeding.

II. Appointment of Certified Interpreters

(A) Except as provided below, the court shall appoint a certified interpreter. Unless stipulated by all the parties, the interpreter shall be qualified as an expert in accordance with Ohio Evidence Rule 604.

(B) If no certified interpreter exists or is reasonably available, the court shall appoint a qualified interpreter.

(1) The court shall consider the gravity of the proceedings and whether the matter could be rescheduled to obtain a certified interpreter.
(2) The court shall summarize on the record its efforts to obtain a certified interpreter and the reasons for using a non-certified interpreter.
(3) The interpreter's qualifications should be stated on the record, including the extent of the interpreter's experience and training as a court interpreter.
(4) The court should make inquiry of all parties and give each side an opportunity to object to the interpreter.

(C) If no qualified interpreter is reasonably available, the court may appoint a language skilled interpreter. But the use of such interpreter in both spoken and sign language is strongly disfavored and should only be used when absolutely necessary.

(D) The administrative judge should designate an individual to coordinate the use of interpreters and whose responsibility would include maintaining a current roster of certified and qualified interpreters, and developing an effective method of screening and assessing individuals and their qualification in accordance with the following guidelines.

(1) "Certified interpreter" means a person who has passed the National Center for State Courts Consortium test, or the Federal Court Certification exam;
(2) In the case of sign language, certification is recognized for interpreters who hold a Specialist Certificate: Legal from the Registry of Interpreters for the Deaf, Inc.;
(3) Qualified spoken language interpreters consist of persons who have completed a seminar on the Code of Professional Conduct for Judiciary Interpreters and Translators. Membership in good standing in a professional interpreters association. The sponsorship of two active members in good standing who have been members of the same association for at least two years whose language(s) of expertise are the same as the applicant's and who attest to having witnessed the performance of the applicant, as well as to the accuracy of the statements on the application and has passed the state certification exam. A minimum of three years experience in court interpretation. Reference letters attesting to the interpreter's performance and years of experience from judicial officials and a passing score on the written component of the certification exam;
(4) In the case of sign language interpreters, qualified interpreter consists of persons holding a Comprehensive Skills Certificate, Certificate of Interpretation (CI), Certificate of Transliteration (CT), must have both CI and CT, or Certificate of Deaf Interpreting, plus three years of experience in court interpreting;
(5) Skilled language interpreters are persons who lack the training to be considered qualified interpreters, but who have demonstrated to the satisfaction of the court the ability to interpret from English into a designated language and from that language into English, have attended a seminar on the interpreter's code of ethics and professional responsibilities, and have observed a minimum of 20 hours of in court proceedings.
(6) In the case of sign language interpreters, a sign language skilled interpreter are persons who lack the training to be considered qualified interpreters, but who can demonstrate to the satisfaction of the court the ability to interpret sign language. These individuals hold only a CI or CT, have attended a seminar on interpreters code of ethics and professional responsibilities, and have observed a minimum of 20 hours of in court proceedings.

(E) If the courts must use an interpreter whose language skills are untested, the court should determine on the record whether the interpreter:

(1) Communicates effectively with the officers of the court and the person(s) who is receiving the interpreting services.
(2) Knows the Code of Professional Responsibilities and is able and willing to comply with the code; and
(3) Is prepared to take the interpreter's oath as in R.C. §2311.14 and as set forth below.

(F) It is the court's duty to inquire regarding the qualifications, training, and pertinent experience of any interpreter even if provided by a language agency as set forth above.

III. Prior Contact with the Case and Interpreter's Oath

(A) Before being sworn to serve on a case, an interpreter shall be required to disclose on the record to the court and to the parties any prior involvement with the case or with any party or witness involved therein.

(B) The presiding judicial officer is responsible for administering the oath in accordance with Ohio Evidence Rule 604.

(C) The name of the interpreter shall be placed on the record and noted on the docket. The record should reflect the interpreter's certification and/or qualifications, pertinent experience, training, and the language of fluency.

(D) The court shall administer an oath that the interpreter will make a true and accurate interpretation of the proceedings to the party or witness, and that he/she will truly repeat the statements made by such party or witness to the court, to the best of his/her knowledge.

IV. Record of Interpreted Testimony and Special Audio Equipment

(A) In criminal trials and evidentiary hearings, the court shall require the proceedings be electronically recorded to permit a record of all sworn testimony and its interpretation regardless of the qualifications of the interpreter. In criminal proceedings involving sign language interpreters, the testimony and interpretation shall be video taped.

(B) In non-criminal trials, particularly when an uncertified interpreter renders interpretation, the court shall order the proceedings to be electronically monitored.

(C) For trials and multiple defendant cases, and for hard of hearing person, the judge shall order the use of special audio equipment when necessary to aid in interpretation of court proceedings. The parties shall give timely notice to the clerk to facilitate arrangements for locating, borrowing or renting, and installing appropriate equipment.

V. Modes of Interpretation

(A) The modes of interpretation shall be in the simultaneous, consecutive and sight translation modes. Summary interpretation should never be used.

(1) The simultaneous mode of interpretation is used during all court proceedings where the non-English speaking person is listening or the judge is speaking directly to that person (e.g., trial, jury instructions, the judge is addressing an officer of the court or any other person other than the non-English speaking person, or reading of rights.)
(2) The consecutive mode is used when the non-English speaking person is giving testimony or the judge or other officer of the court is communicating directly with said individual and is expecting responses.
(3) Sight translation is the oral translation of a written document into the target language.

(B) All interpretation must be done in the first person in order for the court record to be accurate. The third person is used only when the interpreter is speaking for himself or herself.

VI. Effective Use of an Interpreter

(A) In order to maximize communication during interpreted proceedings, the court should:

(1) Instruct persons to speak slowly and at an appropriate volume for the interpreter to hear and should permit only one person to speak at a time;
(2) Seek to avoid interpreter fatigue by providing opportunity for the interpreter to have regular breaks.
(3) Instruct persons to direct the questions and responses directly to the party, witness, counsel or judge. Questions or responses should not be to the interpreter.

(B) In proceedings involving an interpreter, the court should provide instructions which include the following information, as applicable:

(1) When the interpreter is interpreting for a party, the interpreter should be instructed to interpret all statements made in open court including statements made by the judge to the interpreter, objections and statements of counsel.
(2) Any questions by a party should be directed to counsel. During witness testimony, the witness shall be cautioned that any statement, questions or answers directed to the interpreter will be interpreted in open court. Witnesses should be instructed to direct any questions to the person asking the question not the interpreter.
(3) Likewise, counsel should be instructed to direct the questions to the witness and not the interpreter.
(4) When proceedings involve interpreted witness testimony, the witness should be instructed to direct all questions to the person asking the question, not to the interpreter.
(5) In open court, the interpreter shall be cautioned that he/she cannot give any advice; personal opinions; carry on conversations with a party, counsel, or judge during trials. An interpreter may communicate with a party, witness, or judge during the proceeding so long as the communication carried out their professional duties and/or dealing with language expertise.
(6) The interpreter will be instructed that the interpreter is an officer of the court and must remain impartial at all times. If the interpreter cannot meet this duty, the interpreter shall recuse himself/herself. If the judge, the parties, and/or the attorneys become aware of the interpreter giving any advice or opinions, the interpreter shall be removed immediately.
(7) Any challenges relating to the interpreter or interpretation or any allegation of error should be brought to the attention of the judge and should be handled as a side bar outside the presence of the jury without unnecessary delay. The interpreter has a duty to immediately inform the court of any errors in interpretation.

(C) In any trial in which an interpreter will be used, the court shall inquire whether any jurors understand the language to be interpreted.

(D) Jurors should be instructed that:

(1) They should treat the interpretation of witness testimony as if the witness had spoken and no interpreter was present.
(2) They must not give any weight to the fact that the witness, defendant or party cannot speak the English language and requires the services of an interpreter and jurors may not consider the use of an interpreter when evaluating a witness' credibility.
(3) Jurors shall be instructed that any juror who understands the witness' language must disregard any interpretation other than the official interpretation rendered in English and must disregard any perceived errors by the interpreter.

(E) In any trial in which an interpreter will be used, the court should voir dire the prospective jurors regarding their ability to comply with the above instructions.

VII. Removal of Interpreter

(A) Any of the following actions shall be good cause for the removal of the interpreter.

(1) The interpreter is unable to communicate and interpret adequately with the parties, judge, and/or counsel, including self-reported inability.
(2) The interpreter knowingly and willfully made false interpretation while serving in an official capacity.
(3) The interpreter knowingly and willfully disclosed confidential or privileged information while serving in an official capacity.
(4) The interpreter failed to follow other standards prescribed by law and/or the Code of Ethics and Conduct.

VIII. Compensation and Expense of Interpreter Services

(A) Except as otherwise provided in the Ohio Revised Code, the court is responsible for the payment of court interpreters from within the courts own budget and should not be assessed to the parties as cost.

(1) The selection of an interpreter does not constitute an appointment of that person as an employee of the state, county or municipality, except in respect to an interpreter who otherwise is an employee of the state, county or municipality by prior appointment.
(2) Income taxes or social security taxes shall not be deducted from a contract interpreter's compensation. Social security benefits for the contract interpreter shall be based entirely on the interpreter's contribution as a self-employed individual, and the state shall make no contribution as an employee.
(3) The clerk shall prepare and transmit annually to each contract interpreter the appropriate Internal Revenue Service form(s).

(B) The court shall not select as an interpreter:

(1) a person who is compensated by a business owned or controlled by the interested party;
(2) an attorney who has vested interests in the outcome of the case before the court;
(3) a family member;
(4) a person who has a close relation with any of the parties, or
(5) a person who has an interest monetary or otherwise in the outcome of the case.

(C) The court shall be responsible for payment of interpreters for all court proceedings both criminal and civil.

(1) The fees shall be paid from the appropriations available to the judiciary and determined by courts of common pleas or the municipal court of each jurisdiction.
(2) The court shall pay travel and other per diem cost when necessary to assure that certified interpreters are available.

The Proposed Rules of Superintendence was prepared by: The Interpreter Services Subcommittee of the Supreme Court of Ohio's Racial Fairness Implementation Task Force. Please note that these Rules have not been approved or implemented as of yet by The Ohio Supreme Court. These Rules cannot be reproduced or copied for any reason other than for CLE seminars without the expressed permission of the Ohio Supreme Court. Please contact Keith Bartlett Ohio Supreme Court Assistant Administrative Director @ 614-466-1551