Why CART in the Courts?
WHY CART FOR…COURTS, JUSTICE
An article from the NCRA Journal of Court Reporting from years ago, by Deanna Baker
CCAC: This gives us a wonderful first hand report of the experience of a CART professional. We can all imagine how important the “language of real time text” was for the person who required it. The CCAC aims to add first hand reports from “consumers” also. Send us your story via email to firstname.lastname@example.org
As I am awaiting a verdict in what would normally be an “average” vehicular manslaughter trial, I wanted to share the many interesting stumbling blocks that arose. The defendant in this five-day trial is profoundly hard of hearing. I was called in and hired by the Superior Court as a “realtime interpreter” to provide accessibility for the defendant during his trial. The official reporter proceeded with her duties, as it would be impossible to have done both, which I will explain later. I was fortunate to have a wonderful courthouse staff to work with in this small town of Cochise County in Bisbee, AZ, about 1.5 hours from my home in Tucson.
Before the trial proceeded, the Judge, Bailiff, Official Reporter and I had a meeting to discuss the many situations that could arise and we wanted to have answers or alternatives beforehand. With a charge of this degree, I certainly didn’t want to be a point on appeal, nor did the judge. As I explained to the Judge, my job and goal was to provide complete access of the trial proceedings to the defendant.
On the record at the beginning of trial, I was sworn in as a realtime interpreter to both counsel’s agreement. Logistically, I was set up next to the defendant at all times. I made sure my wires were not in a hazardous position for others, my positioning was not hampering jurors, spectators or courtroom personnel. I also wanted to make sure my notebook computer screen wasn’t picking up any glare. I found that black lettering on a light screen worked best, although I do have a color notebook. I had larger than normal print, which also helped. I made it a point throughout the trial to check in with the defendant to make sure he was reading, understanding and comprehending the process as much as possible. The Judge also, on the record, checked periodically that the defendant was understanding, didn’t have any questions, and was proceeding without any problems.
To assure the readability of my “transcript” I used speaker identifications more often than normal, just so there was no confusion with “Q” and “A”.
At times the defendant did ask questions of me regarding terminology such as “sustained” “overruled”, I referred him to his counsel for those answers.
During breaks I was available for discussions between counsel and the defendant, their witnesses, family members, etc. This is where the official reporter could not participate.
With the help of Cynthia Reed, the official reporter in this case, there were situations she noticed that would make it impossible for her to have done both jobs.
The defendant did occasionally interrupt me during testimony asking for clarification on speaker identifications, terminology, procedures, etc.
And as the official reporter, that job is to have 100% of her attention focused on the official Verbatim Report of Proceedings. As an “interpreter” I am writing for 100% comprehension by the defendant and not so concerned about the 100% verbatim, as is the official. I have the flexibility to paraphrase if need be, depending on the comprehension of the person reading. Again, Official Reporters are 100% verbatim.
In this mode of writing, accuracy is a must; conflicts cannot exist; phonetic untranslates are helpful, and fingerspelling needs to be finely honed, awaiting the expert witnesses. I, of course, had asked in advance for any reports that had been filed, but didn’t receive any. The morning of trial, I did get the witness list, and an idea of the kind of experts that were to be called. Thankfully with many years under my belt, an accident reconstructionist isn’t the worst thing that can happen.
During our pre-trial meeting we did discuss putting another realtime setup in Judge’s chambers for motions to be held outside the presence of the jury, so as to streamline the process, instead of asking the jury to go in and out of the courtroom. That situation never arose, but at least we were prepared.
Also, logistically, if the defendant was to be called as a witness, we made arrangements for that setup, too.
There was a videotape deposition played during the trial, I had a hard copy of the deposition arranged for the defendant, he simply read along as it was played. That same situation happened when a taped interview was played to the jury, the hard copy was provided for the defendant to follow.
I made it very clear to all involved, that my realtime would be deleted on a daily basis, that no record would be kept of the realtime. As the situation would be with any other language interpreter. This eliminated the defense counsel from even asking for the privilege of seeing the day’s testimony, as he may have been tempted.
Verdict is in, I can honestly say I have never been more nervous writing for someone as I was today. The defendant literally was following my written words with his life, and happily seeing the not guilty verdict sighed heavily. I, on the other hand, held my breathe trying to keep my hands still, which was impossible.
I think the most important point I have learned from this experience is to be flexible but keep ethical considerations in mind and remembering the goal of providing access.
Now if only the situation would come up where my services would be needed by a juror and I can finally find out what goes on in a jury room!
Prepared for the CCAC by:
It is axiomatic that all litigants be able to understand the proceedings. If a person is unable to hear and understand, that person is unable to participate, and if unable to participate, it is a denial of due process under the Fifth and Fourteenth Amendments. See United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2d Cir.1970). A litigant’s difficulty with English may impair his or her ability to communicate with counsel, to understand testimony in English, or to make himself or herself understood in English. Hearing people often assume facts to be true, which, on close examination, are not true. For example, Some believe that a litigant probably can “lip read.” But that view is the product of misinformation. As one commentator wrote, the ability to lip read is more a function of myth than fact. See Jo Anne Simon, The Use of Interpreters for the Deaf and the Legal Community’s Obligation to Comply with the A.D.A., 8 J.L. & HEALTH 155, 175-76 (1994). While many deaf people can lip read to some extent, only 25% to 40% of the English language is visible on the lips in the best of conditions. Id. at 176. It is seldom sufficient in and of itself. Id. Another commentator noted that one study found that the best lip readers (or, more preferably “speech readers”) could fully comprehend only 26% of what was said to them. Deirdre M. Smith, Confronting Silence: The Constitution, Deaf Criminal Defendants, and the Right to Interpretation during Trial, 46 ME. L.REV.. 87, 97 (1994).
Courtroom settings provide an excellent example of the limitations of speech reading. Id. at 98. The speaker may be at a distance from the deaf person and, if there are several participants in the proceeding, the speaker may be turned away from the deaf person. See id. As well, the courtroom setting and decorum eliminate many visual clues used by deaf people who speech read. Id. The use of legal terms and other words unfamiliar to lay persons can further limit understanding. Id. For example, professional jargon contains many words and phrases that would be incomprehensible to one who is speech reading. Id. This is why, even if a deaf person can find ways to communicate outside the courtroom, as the circuit court in this case alluded to, it is a stretch for the court to reason that the person can then also adequately communicate inside the courtroom. Writing notes back and forth is also an inefficient and ineffective method of communicating in the courtroom. People, hearing or deaf, tend to condense what they would say in other modes when they are writing notes, which could be extremely prejudicial in legal settings. Id. And, many deaf people have a reading level well below average. Id.
English is a second language to most deaf people who lost their hearing during childhood. FN9 Id. But it is the primary language for those who lost their hearing later in life. The most effective means of communication for later deafened or hard of hearing persons is CART. It provides the mechanism for understanding what is being communicated in the courtroom in “real” time. It is accurate and allows full participation by the person in need of this accommodation.
CCAC thanks Judge Richard Brown for sharing this document with us, from a 2009 Court Case.