January 21, 2020 Mental Health

Says You! The Use of Interpreters in Forensic Mental Health Assessment

Eric Y. Drogin

The very first entry for this column placed considerable emphasis on difficulties in “deciphering the roles and opinions of mental health experts.” How much more complicated does this become when, in addition to our not being able to understand what the doctor is saying, the doctor can’t understand what the examinee is saying—or, at least, can’t do so without someone else’s help? Let’s explore how a prosecutor might consult with a reputable forensic psychologist in order to ensure that appropriate assistance can be obtained when evaluators and examinees are literally speaking different languages.

Prosecutor: I’m excited we were finally able to get you appointed to conduct this evaluation; sorry it took so long!

Doctor: It’s too bad the “speedy trial” provision you’re always complaining about doesn’t apply to expert witnesses.

Prosecutor: Well, obviously we’d like you to get started right away. One thing, though: Do you speak any other languages?

Doctor: Is this another joke about the judge telling me last month to “speak English”?

Prosecutor: No . . . but the defendant in this case doesn’t speak it at all. He’s fluent in both Spanish and Italian, but apparently that’s the only way he can communicate. How about you?

Doctor: Latin in high school—which is why I sometimes understand what you’re saying—and then four years of Russian as an undergraduate.

Prosecutor: What did you think you were going to do with that? Become a spy or something?

Doctor: That’s classified information. Too bad you didn’t mention these language issues way back when you first invited me to work on this case—I could have gone and learned Spanish by now.

Prosecutor: I hear you. Fortunately, Spanish language assistance shouldn’t be too hard to come by in these parts. Do you know any good translators for this case?

Doctor: No, and you probably don’t either.

Prosecutor: Why is that?

Doctor: Because “translators” are the ones who transform written materials into English. You’re looking for an interpreter.

Prosecutor: Okay. Any leads?

Doctor: There’s one interpreter whom the public defender office was using for a while, but eventually they ran into a problem with this person over note-taking.

Prosecutor: Why would an interpreter need to take notes? Think what it would mean if opposing counsel could get a hold of them and discover all of the things an expert left out of a report. Have you ever run into other issues with interpreters?

Doctor: Language is made up of words, but typically there’s no one-to-one correspondence between those words. Let’s assume someone says “I am hungry” in English, and then we need to figure out how that would be said in various other languages. We wouldn’t just use, say, the German words for “I,” “am,” and “hungry.” The way the Germans say it comes down to “I have hunger.”

Prosecutor: I thought you studied Russian, not German.

Doctor: I’m looking this up on Google Translate while we’re talking.

Prosecutor: Shouldn’t that be “Google Interpret”?

Doctor: Even trying to work things out on a phrase-by-phrase basis doesn’t mean things will match up perfectly. Besides, speech tumbles forward, and even if I were listening to someone over the phone and tried to tell someone standing next to me what was being said, in the same language, there would be little discrepancies here and there.

Prosecutor: Does that mean the same thing happens when you’re evaluating someone in English and then you write a report about what he or she said?

Doctor: When there’s something in my report that shows up in quotation marks, that’s a word-for-word accounting. That’s not true, of course, of a phrase like “after which the defendant expressed concern that counsel might not be working hard enough in this matter.”

Prosecutor: Are there other issues?

Doctor: All of this presupposes that the interpreter gets things right . . . going both ways. There’s no guarantee that the interpreter possesses a perfect balance of skills in both languages. Maybe you have a primary English speaker who took courses in Spanish in school and does okay in that second language. Maybe you have someone where it’s the other way around. This can have implications for conveying complex legal terms one way, and for conveying potentially misleading idioms the other way.

Prosecutor: What would be an example of the latter?

Doctor: There’s a story—probably apocryphal—about the psychiatric resident who tried to hospitalize someone for delusional paranoia when the patient appeared in his office with a complaint of “butterflies in my stomach.”

Prosecutor: How can I control for things like that?

Doctor: One way would be to bring in a second interpreter to observe what the first interpreter is doing . . . or to have that second interpreter review a recording—with video, to capture nonverbal communication as well—of what the first interpreter is doing.

Prosecutor: That runs into money, not to mention that it’s kind of hard to do anything more than complain when issues are discovered after the fact. This is sort of like when we occasionally get a court order for you to sit in on an examination that the defense doctor is conducting. Two doctors, two translators, an attorney or two, and, oh yes, the defendant . . . you’re gonna need a bigger boat.

Doctor: True. It’s a lot easier, then, to get a certified interpreter. Just like you do when you make sure that your various expert witnesses are board certified. Talking about experts reminds me of something else, too . . . the potential for bias.

Prosecutor: Ten minutes ago I would have asked why we’d worry about bias, but now that I know the process doesn’t work literally word-for-word . . .

Doctor: This can come up in a couple of different ways. It may be that the interpreter so identifies with the group the defendant represents that there’s an attempt to “smooth things out,” by making the defendant seem more coherent as a matter of cultural pride, or as a way of making the interpreter’s own job a little easier. It may also be that the interpreter is identifying with counsel and feels like a part of the “legal team,” which can result in the defendant’s remarks being tweaked so statements appear either more or less inculpatory—sometimes without the interpreter fully realizing that this is what’s going on.

Prosecutor: Clearly there’s a lot to consider in these matters.

Doctor: I suggest approaching this the same way you do when you’re hunting for an expert witness. Ask around. Take a meeting ahead of time. Don’t shy away from asking for the prospective interpreter’s take on some of these issues. It’s always best to plan ahead . . . de bene esse.

Prosecutor: Now you’re speaking my language.

Our readers were also promised a “balanced approach,” so here goes: Just as with expert witnesses, defense should be alert to the reasons why the prosecutor always insists on one particular interpreter when there are a number of other candidates available. Is this solely because of linguistic precision and insight?

Please feel encouraged to contact Dr. Drogin with any questions about the use of interpreters in forensic mental health assessment, or with any suggestions for future topics.

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Eric Y. Drogin is a board-certified forensic psychologist and attorney serving on the faculties of the Harvard Medical School and the Harvard Psychiatry Residency Training Program.