Hispanics and the Law in
Massachusetts
 College
of the Holy Cross
 February
 Class
14, 2008
5
 Robert
LeRoux Hernandez,
Instructor
Language and justice
Miento, miento
Imagine
 You
are an attorney
representing a defendant in a
capital case
 Your
client is Spanish-speaking
 There
is a court interpreter, but
you do not have an interpreter
On the stand
 Your
client is on the stand and has
answered the prosecutor’s difficult
questions
 Suddenly
your client blurts out,”miento,
miento.”
 The
court interpreter translates: “I am
lying! I am lying!”
What do you do?
Move
for a mistrial?
Stand
up and object to the
interpretation?
On
what grounds?
On what grounds?
 Your
 In
client is of Columbian origin
her idiom, when one misspeaks for
whatever, even completely innocent
reason, one says, “miento, miento,”
which in all other parts of the Spanishspeaking world means, “I am lying, I
am lying.”
What do we know?

There has been a significant change in the
composition of Massachusetts

Hispanics constitute a significant portion of the
population; they are a majority in some areas

A significant portion of the Hispanic population
is only marginally bi-lingual or is mono-lingual
Spanish

Language is central to Hispanic Identity
How do Hispanics Interact
with the law?
 Just
like everybody else
Obeying the speed limit
 Paying taxes
 From time to time in court
 Courts
 Take away liberty
 Take away property
 Take away children

Courts are a big deal

Power of judges and juries

Right to a fair trial

Right to a jury of one’s peers

Right to understand proceedings which may
affect life, liberty or happiness

Equal protection depends on equal access to
justice
The law and language
 The
law is language
 The
law is applied to through language
Judge
 Parties
 Juries

 For
linguistic minorities, difficulties with
English will interfere with access to and
quality of justice
And the exclusion of Bilingual Jurors
Hernandez v. New York
Key terms and concepts

Grand Jury/ Petit Jury

Peremptory challenges

Challenge for cause

Batson v. Kentucky
Majority Opinion
Plurality Opinion
Concurring Opinion
Dissenting Opinion
Jury challenges
 Challenge
for cause-
 Unlimited
 Must
show potential juror is not
unbiased
 Peremptory
 Limited
challenge-
number
 Any reason or no reason
Batson v. Kentucky, 476 U.S.
79 (1986)
 Cannot
use peremptory challenge
on the basis of race
 Rights
of parties and of potential
jurors affected
Hernandez v. New York

Indicted by grand jury, Hernandez was tried, and
later convicted, on two counts of attempted murder
and possession of a weapon

During jury selection, the prosecutor used
peremptory challenges to exclude two bilingual,
Latino jurors from the jury.

no Latino jurors remained on the jury that convicted
Hernandez
Prosecutor in Hernandez
 In

response to Batson challenge:
felt "very uncertain" that they would be able to
listen to and accept the interpreter's rendition
of testimony given by Spanish-speaking
witnesses
 objected to their demeanor during their
responses to his questions
Concurring Opinion
 Justice
Sandra Day O’Connor
 Joined
by Justice Antonin Scalia
 No
rule of disproportionate
effect
 Joined
plurality who did not find
discrimination in this case- total
5 votes
Plurality Opinion

Justice Anthony Kennedy wrote it

Joined by Chief Justice Rehnquist and Justice
David Souter

No direct evidence of ethnic discrimination

Prosecutor presented non-discriminatory
rationale

Deferred to trial judge, but there could be
discriminatory exclusion on basis of language
Dissenting Opinion
Justice
Joined
John Stevens wrote opinion
by Justices Thurgood
Marshall and Harry Blackmun
A majority held
You
can exclude jurors for
bilingualism
A larger majority held
You
can’t exclude jurors on the
basis of ethnicity
Considerations
Right
to be on juries
Right
to a jury of one’s
peers
Student Presentations
 S.
2198
 Grace
Miller – Pro
 Sara Greene – Con
 Collection
of information by
Jury Commissioner
Perea: Fear of Spanish

"the interpreter often plays a decisive role in controlling the speech of
witnesses or defendants who are testifying on the stand.”

Requests for clarification regularly made by interpreters alter the
relationship between interrogating attorney and witness

may change a jury's perception of both the attorney and the witness.

Interpreter's linguistic decisions alter the meaning of testimony given by
witnesses

the interpreter is a human participant and a shaper of the meanings given
to testimony in languages other than English.

variability proven to inhere in the interpretation process should make us
wary, then, about attributing finality and certainty to the official
interpretation of testimony.
If bilinguals can be excluded
from juries . . .

It’s all up to the interpreter

In the best of all possible worlds, there is a
possibility that interpreters could provide access to
equal justice for legal minorities, but that
possibility is so small as to be for all practical
purposes unrealistic.

While we fix the bigger problems, we must do what
we can do to obtain the best possible interpretation
Interpreters & Translators

What’s the difference?

Interpretation


the transfer of meaning from a source language to a
receptor or target language
allows oral communication between two or more
persons who do not speak the same language.
Who needs interpreters?

De Jonghe, Table III, Interpreter Use by Language US
District Courts, 1988

Spanish: 46,064

Haitian creole: 538

Cantonese: 520

Arabic: 507

…

Turkish: 1
Court Interpreters

In a court of law, interpreters make it possible
for non-English-speaking defendants and
witnesses to "hear" the proceedings in which
they are involved, and for judges, attorneys,
court reporters, and other key courtroom
personnel to understand the testimony of nonEnglish speakers.
Modes of Interpretation
1.
Sight translation
2.
Consecutive interpretation
3.
Simultaneous interpretation
Sight translation
the
oral rendition into the
target language of
material written in a
source language (e. g.,
letters, invoices)
Consecutive interpretation
 requires
that the source language
speaker pause at regular intervals
to allow the interpreter to convey
the target language interpretation

is used for on-the-record
testimony (i.e., when a nonEnglish-speaking person testifies)
Simultaneous interpretation
demands
that the
interpreter listen and
speak concurrently with
the primary speaker
whose monologue is
being translated
Language and culture
Bilingualism
Biculturalism
Language as a Guide to
Social Reality

Sapir- see DeJonghe Article

No 2 languages sufficiently similar to represent the
same social reality

Users of different languages perceive the world
differently

Not the same world with the same labels attached
At minimum

Language expresses perception and

Categorization of experience

Metaphor for cultural and personal experience

Each language composed of different set of
metaphors, based on cultural and personal
assumptions and experiences

Very similar to very different
Solutions

English only

Quasi-justice, unequal access to justice

Parallel justice-separate and equal?

Something else?



Latinos need access to professionals
There are not enough to go around
How do we get around it?
Biculturalism
 Ability
to interpret experiences in a
manner appropriate to both cultures
 Culture:
the way of life of a people or society, including
its rules of behavior
 Economic, social and political systems
 Language, religious beliefs, laws

Culture
Acquired,
socially
transmitted and
communicated in part by
language
Bilingualism
is not de
facto biculturalism
Monoculturalism
 Implies
ethnocentric interpretations
regardless of the language or context of
experiences to be interpreted
 Interpretation
requires deep familiarity
both with languages involved
(bilingualism) and with respective cultures
(biculturalism)
Biculturalism

Significant role in preserving rights of nonEnglish speakers

Proper interpretation of speech


Transpose it with its entire semantic, emotional and
aesthetic baggage into a language using completely
different modes of expression
Convey exact meaning and intent of the speaker
Interpretation (DeJongh)
Source
Language
Analysis
Transfer
Translation
to Receptor
Language
Restructure
Interpretation (DeJongh)
Source
Language:
Hello
Other
choices: qué
hay? Que
tal?Diga.
Oigo?
Bueno?Man
de
Translation
to Receptor
Language:
Hola
Restructure:
Decision to
distinguish
among forms
of greeting
available
Analysis:
Friendly
greeting on
arrival
Transfer:
Spanish
Sensitivity to nuance
All
aspects of
communication
 Words
 Tone
 Changes
of intonation
 Facial cues
 Gestures
Gestures
 Not
same significance across
cultures
V
sign
 OK
 Twirling
finger around ear
Equivalence is not word
for word
False
friends/palabras
engañosas:
 Notary
 Notario
Yo
lo ignoraba
Interpreter: I ignored it
Context
Situation
in which words
uttered
Intention of the speaker
How something is said
The interpreter’s words are
the only record kept
Right
to appeal?
Force-fitting
everything into 1
person’s version of
what was said
Interpreters in
Massachusetts

One of main MAHA issues in the 1990s

SJC Committee to Study Racial and Ethnic Bias in
the Courts- 1994 Report

Mass. Bar Association Study: Ensuring Equal Justice
(1996)

Everyone seems to agree there is a severe shortage
Useful information about law
and justice not available

AT&T Phone Line

Translation of 209A domestic violence forms and
guides

Multilingual signing
Interpreters not available
when needed in court

White attorneys: 40%

Black/African American attorneys: 58%

Hispanic attorneys: 71%

Asian American attorneys: 61%

White judges: 50%

Minority judges: 70%
Legal proceedings held
without qualified interpreters

Judges routinely use private volunteers, family
members, inmates, etc.

General agreement judges willing to appoint
interpreters at least sometimes but Hispanic
attorneys more willing to voice opinion that this
never or seldom happens
Inability to speak English
negatively affects cases

“Usually or always”

White attorneys 26%

Black/African American: 43%

Hispanic: 62%

Asian American: 74%

White judges: 6%

Minority judges: 28%
Cultural Barriers

Contribute to misunderstanding

Frequently misunderstood

Eye contact

Ridiculing by court personnel
What about outside the
courts?
Access to
lawyers
Depositions
Record
on appeal
Is access to equal justice possible for
Spanish-speaking residents?
Inaccessibility
Exclusion
to courts
from juries
Unavailability
of properly
trained interpreters
Limitations
of
interpretation