Guidelines for Communicating Rights to Non-native Speakers of English
Thursday, December 17, 2015
In October, the AAAL Executive Committee endorsed the document entitled “Guidelines for communicating rights to non-native speakers of English in Australia, England and Wales, and the USA”. The document was then passed to the Resolutions Committee and is now displayed at the AAAL website in anticipation of the membership vote in April 2016. As a co-convenor (with Diana Eades) of the Communication of Rights Group that produced this document, I was asked to say a few words about the guidelines.
The first question I usually get is: What is the purpose of the guidelines? Don’t suspects already have the right to an interpreter in court? Indeed, in 1978, President Carter signed the Court Interpreters Act of 1978 ensuring the right of any individual involved in a court proceeding to have a certified court interpreter. In August 2000, President Clinton’s Executive Order 13166 “Improving Access to Services for Persons with Limited English Proficiency” further stressed the importance of language access accommodations. These documents, however, do not cover the initial point of suspects’ contact with the law enforcement, namely police interrogation.
To protect the suspects’ Fifth amendment right against self-incrimination, police are required to communicate the warnings known as Miranda rights that include the right to remain silent, the right to request a lawyer, and the right to have a lawyer provided for free. Extensive research on comprehension of the rights, collected in the Appendix to the Guidelines, shows that even native speakers of English do not always understand Miranda rights. The problems are even greater for non-native speakers of English who may be able to conduct basic transactions but do not understand legal terms, such as ‘waiver’, or complex sentences, such as “If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish”. Yet many still say ‘yes’ in response to the question “Do you understand?” and sign the Miranda form out of fear or deference to authority. If, at the subsequent hearing, the defense manages to show that the suspect did not make a decision to waive their Miranda rights voluntarily, knowingly, and intelligently, the evidence produced during such interrogation may be suppressed by the judge.
It was precisely at this kind of hearing that I conceived the idea to create these guidelines. The purpose of this pre-trial hearing was to establish whether a Kazakh national Dias Kadyrbayev, friend of the Boston Marathon bomber Dzhokhar Tsarnayev, understood his Miranda rights. I testified in the hearing as an expert witness and on the basis of linguistic evidence presented to me, concluded that as a speaker who relied on simple sentences, such as “I am feel bad” or “I did them very bad”, Dias did not have sufficient linguistic proficiency to understand his rights. Yet neither the judge nor the press understood my arguments or agreed with my conclusions (for a detailed discussion click here). Leaving court that day, I decided that there has to be another way to address this problem and shortly after contacted Diana Eades, the convenor of the group that authored the influential Guidelines for the Use of Language Analysis in Relation to Questions of National Origin in Refugee Cases. It turned out that Diana has also been very focused on the issue of communicating rights to non-native speakers in police interviews, following a 2014 Australian case in which she was one of four linguists giving expert evidence (click here for more detail).
Next, Diana and I reached out to forensic linguists, psychologists, lawyers, and interpreters with expertise in communication of rights in Australia, England and Wales, and the USA. Several members of the group, including Susan Berk-Seligson, Diana Eades, Bill Eggington, Roger Shuy, Margaret van Naerssen, Keith Walters, and Ann Wennerstrom, are current or past members of AAAL. Drawing on the research and on our collective experience of working with non-native speakers of English in legal settings, our group articulated seven recommendations for how the police can better communicate rights to non-native speakers of English. These recommendations include development of standardized wording in plain English, standardized translations in other languages, access to an interpreter, and adoption of an “in-your-own-words” comprehension check in which suspects are asked to explain each right in their own words. If they have difficulties restating the rights in their own words in English, the interview should be terminated until a professional interpreter, with expertise in legal interpreting, is brought in.
At present the guidelines are considered for endorsement by several professional associations and the National Association of Judiciary Interpreters and Translators (NAJIT) announced their release as groundbreaking on the NAJIT website. We sincerely hope that these recommendations will contribute to a better understanding of difficulties for non-native speakers of English in police interviews, and result in moves to better protect the rights of these suspects, and to afford them equal treatment under law. The guidelines are not copyrighted and we encourage you to read them and to share them freely with your students and colleagues. We will also be happy to discuss them in person with you in Orlando at the invited colloquium Applied Linguistics in the Courtroom that features several members of the group. Meanwhile, if you have any questions please do not hesitate to contact me at email@example.com.
—Aneta Pavlenko, Temple University