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THE STATE OF COURT INTERPRETATION STANDARDS IN JAPAN

(Introduction)
(Some first-hand observations from the Worthington/Mitchell vs Prefectural University of Kumamoto Case)


(Introduction)
A long fight for better court interpreting
By PAUL BAYLIS, Asahi Shimbun News Service
(IHT/Asahi: February 17, 2003)
(courtesy Community Member Cornelia Kurz)

"When I saw the defendant shivering, I began to think about what he felt."
HIROMI NAGAO, Courtroom interpreter

When Hiromi Nagao first began interpreting in court cases involving non-Japanese-speaking foreign defendants, she was terrified before and during every trial. Without any special training or qualifications, it was a constant process of learning from her mistakes-not a comfortable situation, given that the trials could have a huge impact on the lives of the defendants.

Yet strangely, almost no one in the legal profession saw this as a problem. There were only a few non-Japanese-speaking foreigners coming before the courts at the time, and even if they couldn't understand what was being said, that rarely affected the outcome of the trial.

But for interpreters like Nagao, the situation was "desperate". "Nobody gave me any information about what to do, there was no textbook, no place to go, no one to give me any guidance or any way to improve my legal terminology," she said in an interview. "You can imagine how frightened I was".

Now, 21 years later, thanks largely to her efforts, the status of courtroom interpreters has improved greatly. Judges and prosecutors treat them with more respect, give them key documents before trials, and even let them interrupt proceedings when they become exhausted or run into difficult problems. As one of the most experienced court interpreters in Japan, Nagao, who works in Japanese and English, has interpreted for around 200 cases. She is the founder and president of the Japan Judicial Interpreters Association, which works to improve the status of interpreters, as well as their skills and knowledge, through training, courses and seminars. She is currently working toward a Ph.D. in courtroom interpreting at Osaka University of Foreign Studies, which would be the first doctorate ever granted in the field in Japan.

Along with a professor from Kobe Gakuin University, Nagao has been commissioned by the Ministry of Justice to study the court interpreting systems in Australia and Europe, and then make recommendations to the ministry on how to improve the system.

The need for court interpreters has increased greatly in recent years. According to the Supreme Court, in 1989, only about 1 percent of all trials required interpreters. Now, the proportion is more than 10 percent. The number of court interpreters has grown proportionally. In 1990, there were only 240 registered with the courts, whereas now there are about 10 times that number, interpreting more than 40 languages and dialects.The types of cases requiring interpreters have grown too. When Nagao first began interpreting in 1981, most cases dealt with entertainment visa overstayers from the Philippines. Now, many cases involve drugs and robbery, and the defendants come from a wide range of countries. While the legal profession has more respect for interpreters, Nagao said, there are still many problems with the quality of interpreting, since there are no clear standards and no special training is required.

"You need to have some rules; you need to have a certification system; you need to be above a certain level to be allowed to do court interpreting," she said.

Born in Okayama in 1949, Nagao spoke fluent English by the time she was an adult, having lived in Houston for several years as a child. She majored in English literature at Hiroshima Jogakuin University and got a master's degree from Kobe College.

Yet the first time she was contacted by the court to interpret for a foreign defendant, she had no idea what to expect.

"The first case in which I was told just to come to the court for the questioning, I was scared, I was frightened, I was not used to that courtroom atmosphere. I could not understand the discourse between lawyers and judges and prosecutors."

But when she saw how terrified the defendant was, she realized how minor her own fears were by comparison.

"I was sitting on the same bench as the defendant and I could feel his trembling," she said. "Up to that moment I was thinking only of myself. But when I saw his shivering, I began to think about what he felt."

It dawned on Nagao there was something wrong with a system that went to great lengths to ensure due legal process for a defendant who could not even understand what was being said about him.

"The Japanese government is defending his human rights by having all these procedures, but they are just talking by themselves. He is the person who should know his own rights and what's happening."

Due to her unfamiliarity with legal terms and her inability to get assistance from the courts, Nagao found it impossible to do what she considered a "sufficient" job interpreting. On her own initiative, she began visiting the offices of prosecutors and lawyers to ask for information before trials. In some cases they were cooperative, in others, they were not. Some prosecutors even said pre-trial information was "none of her business".

"Maybe I would know it was a marijuana case, or a smuggling case, and I might go to a bookstore and find a book about marijuana to pick up the professional words used for marijuana. That's about all I could do".

After about six years, Nagao began to have confidence in her abilities. She had gained the courage to request a recess when she was exhausted, and to interrupt proceedings to correct her own mistakes. While she had considered quitting, she realized that would just mean that some other interpreter would have to learn everything the hard way all over again, and the real losers would be the defendants.

Then, about 10 years ago, the attitudes of the legal profession began to change. The Supreme Court finally recognized the integral role that interpreters played, and issued a directive for the lower courts to cooperate with them. Courts began to make documents available and a handbook for interpreters was published.

Now, the main problems are with the selection of interpreters, and with qualifications and accreditation. Selection is left largely to judges, who may ask about the backgrounds and education of interpreters, but who are rarely qualified to assess their linguistic abilities.

A system of training and certification is needed, Nagao said, because of the specialized, technical nature of courtroom language, and because of the sensitive nature of the material being interpreted.

"You need to know the terminology beforehand, you need a code of ethics, confidentiality, you need to know not to modify, add or revise anything. You have to be very careful, but in order to be careful, you have to have guidelines, but there are no guidelines in Japan".

As an example of the type of specialized language used in court, she offers the term "midari ni". In vernacular language, it means "recklessly", "carelessly", or "indiscriminately". But in court it means "without legal permission" -something few non-experts would know.

Other problems concern impartiality, accuracy and the importance of not altering what defendants say.

In teaching other interpreters, Nagao sometimes recalls a case she interpreted about 10 years ago, in which a judge asked a female defendant whether she had anything to say before sentencing. Through her tears, the distraught woman muttered only: "Sorry ... home ... soon ... daughter". Nagao interpreted that as: "feel very sorry for what I have done and I would like to go home as soon as possible to meet my daughter".

The prosecutor immediately challenged the accuracy of this, noting the woman had only spoken four words.

"Now, working as a court interpreter and teaching a code of ethics, I think I should have said that I only heard four words, and leave the formation of the sentence up to the judge."

For some interpreters, the amount of money they get paid is a problem. The rate is not fixed and is usually decided by the judge. The average is about 15,000 yen per hour. A simple case may take two or three hours, and the most Nagao has made on one case is about 180,000 yen. The hourly system, however, doesn't take into account any preparation interpreters do before trials, or the fact that more efficient, better prepared interpreters take less time.

Yet for Nagao money is not most important thing. She considers courtroom interpreting to be a kind of "calling" for her, and the most important thing is to make sure the rights of defendants are protected by their fully understanding what is going on in the courtroom.
ENDS

WORTHINGTON et al VS PREFECTURAL U OF KUMAMOTO:
THEIR DAY IN COURT
Testifying in a Japanese courtroom
By Arudou Debito

Date: Thu, 28 Feb 2002 13:39:49 +0900
From: Arudou Debito/Dave Aldwinckle <debito@debito.org>
Subject: REPORT: Testifying in Japanese Court (PUK Case)

My colleagues and I have been cataloging cases in the Japanese legal system for several years (see inter alia http://www.debito.org/PALEJournals), and have become fascinated with Japanese court procedure. One interesting lawsuit is the Prefectural University of Kumamoto (PUK) Case.

Brief: After being hired to open a new language department, several non-Japanese academics discovered they had been deceived about their employment status, i.e. given dramatically inferior conditions to Japanese and even other non-Japanese faculty. When they questioned the disparity, they were ignored by the aministration, further deceived, and ultimately fired over the course of several years. It's a long story, of course (more details at http://www2.kumagaku.ac.jp/teacher/~masden/mamorukai/english/index.html, as well as the above PALEJournals.html link above), so let us fast forward to the present day and talk about recent developments: taking the witness stand and pleading one's case before the judges.

This essay will focus upon one particular facet of Japanese court procedure--oral testimony (jinmon) when one's native tongue is not Japanese--through the eyes of one activist, yours truly, who attended a PUK hearing to prepare himself and his fellow plaintiffs for their own court testimony (the Otaru Onsens Case: http://www.debito.org/otarulawsuit.html), coming up on March 11, 2002.

/////////////////////////////////////////////////

JANUARY 31, 2002
KUMAMOTO DISTRICT COURT
THE SETTING

I have already given a background description of the Spartan atmosphere of a Japanese courtroom (http://www.debito.org/courtingjustice032701.html), so I
won't dwell. The facts worth rementioning about a Japanese civil suit testimony are:

1) There are three judges and no jury.

2) There have usually been at least six or seven hearings already, a month or two between each. First come formal written statements by Plaintiffs, then Defendants, making their case on separate days. Then two or more hearings ensue with written rebuttals of both sides' statements. Then a couple more hearings produce written rebuttals of the rebuttals. As these hearings involve no more than an exchange of documents, they take little more than fifteen minutes each, with more time spent on scheduling the next meeting than on any formal oral arguments in court.

3) This means oral arguments and cross-examinations come at least a year after the lawsuits are filed. In the PUK and the Onsens Cases it has thus far amounted to seventeen and thirteen months respectively. The Plaintiffs and the Defendants again testify on separate days, a month or two in between.

4) Verdicts come some months after the testimonies, as long as neither side decides to settle out of court in the lengthy interim.

5) If somebody decides to appeal the verdict, start the whole process all over again. Plan on at least a decade of litigation if your case goes all the way up to the Supreme Court. Extreme examples (cf. the Minamata Mercury Poisoning Case) have taken the better part of a generation.

Procedures are of course different in different types of courts, such as Family and Criminal, and can take far longer in the latter case (the Aum Shinrikyo Leader Asahara Shoukou Case has had well over 200 hearings so far).

The result is that the wheels of Japanese justice turn slowly, and in many eyes do not provide the confidence of justice. With recent scandals of Japanese judges being involved in sexual offenses and harassment cases (see Dec 20, 2000's Intl Herald Tribune, http://www.debito.org/IHT122001.html), the system has come under fire for the conservative selection process of judges and their lack of accountability, the lack of a jury to reduce judicial insularity (there is debate about bringing in juries for criminal cases), the constant shuffling of papers and judges and consequent disjointedness of verdicts, the judiciary's favoritism towards the Prosecution and police procedure in criminal cases (see http://mdn.mainichi.co.jp/news/20020226p2a00m0fp003000c.html, on Feb 26, 2002 Tokyo District Court ruling exonerating police of responsibility for Iranian visa overstayer who died in police custody of "self-inflicted" head wounds), the lack of reliance on legal precedent, and a demonstrated judicial overprotectiveness of the status quo in general.

Now let's return to the PUK Case in specific and sit in the Court Gallery.

/////////////////////////////////////////////////

1:30-5 PM. PLAINTIFF WORTHINGTON TAKES THE STAND

Cynthia Worthington, representing one of the two dismissed PUK faculty Plaintiffs (the other being Sandra Mitchell, currently overseas), was duly sworn in, reading an oath (sensei) in Japanese. She read aloud some opening comments in English, with a court interpreter translating. Then Worthington's lawyers walked her through a line of reasoning to demonstrate that:

1) PUK was actively discriminating against foreign faculty by assigning only foreigners contract employment, never permanent tenure, whereas all Japanese full-time faculty enjoyed tenure from start of employment.

2) PUK had employed Worthington et al on full-time contracts in English, even officially reporting to the Ministry of Education that they were hired full-time to get government permission to open their language department. However, PUK construed the Japanese version of the contracts (claiming the position of "sennin" meant part-time) to deny foreigners the trappings of full-time employment: full-timer salary, insurances, voting rights in faculty meetings, and permanent tenure. The administration made clear that foreign faculty under these contracts were technically on an equal footing with custodial staff.

3) Despite the demonstrated part-time status, Plaintiffs nevertheless had full-time duties: heavy class loads, daily attendance, responsibilities for class preparation and curriculum development, committee work, offices, research requirements and budgets.

4) PUK's administration had demonstrated racism in its attitudes and statements towards Plaintiffs, expressly indicating that people who didn't "look Japanese" were not entitled to be employed the same as Japanese full-time faculty.

And more from a hazy memory. Hours of back and forth through an interpreter doubled the time involved and made things somniferous (one of the flanking judges kept nodding off--he was about to be transferred off the case soon anyway, it was said). By 2:45 PM, when the court recessed for 30 minutes, it was clear that there as a serious problem afoot:

/////////////////////////////////////////////////

COMMUNICATION PROBLEMS

The Court Interpreter, an earnest but not entirely competent young lady appointed by the court, was clearly out of her depth. She had not been clued into the facts or terminology of the case (she could not distinguish between employment classifications such as kyoushi, kyouin, and sennin), she did not have copies of the documents which the lawyers on both sides and the judges were referring to, and she did not have enough training to hold Worthington's longer sentences in her head. This resulted in valuable nuances being lost in translation. Moreover, as the Interpreter's inevitable exhaustion took her higher brain functions off-line, she made mistakes that everyone--including the Defendants' lawyers--could and did pick up (the difference between "must" and "should", for example).

Some of this was unavoidable. Before the hearing, the judge refused to allow Worthington's lawyers to meet with the Interpreter and bring her up to speed. He also refused a request to change the Interpreter midway. This mattered, since the Interpreter's statements would be the ones entered into the court record, not Worthington's original English, making for a very real possibility of compromised testimony.

However, the judge became surprisingly lenient. Whenever a nuance was lost, which was every few minutes or so, Worthington's friend and very able translator Ayako Chinen tapped her pen on the Gallery railing and whispered the missed portions to Worthington's lawyers. Surprisingly, the judge did not object. Moreover, whenever Worthington's sentences became too long, whispers of "STOP!" emanated from her supporters in the Gallery. As a result, the atmosphere became more convivial in the second half, as all sides resolved to make the best of things. By the end, all I could think of was how that interpreter probably just wanted to go home, take a bath and forget this day ever happened.

For those who like their court dramas properly paced: sorry, that's not how it works in the real world. However, the short (50 minutes) softball cross examination by PUK's lawyer (who, according to Worthington's supporters, seemed overconfident about his chances of winning and hadn't been trying all that hard) was memorable. It went something like this (in paraphrase, of course):

===============================
LAWYER FOR THE DEFENSE: ...So you said that you were treated unfairly at the school, given part-time status for full-time work?

WORTHINGTON: Yes.

DEFENSE: How do you, personally, define "part-time" and "full-time". (quoted statements stated in English)

WORTHINGTON: I define "part-time" as "hijoukin", and "full-time" as "joukin". (meaning corresponding Japanese translations) (courtroom laughter)

DEFENSE: Be more concrete. Why do you think that you were not really a part-timer?

WORTHINGTON: As I stated before, I compared my working conditions to real part-timers. I did not just come in, teach my class, and leave, like real part-timers at PUK. You can see by the submitted attendance documents that I was in my office almost every work day, far more than the 30 hours a week than I was apparently contractually allowed. Yet the school never said that I should work less. I was in my university office, which real part-timers are not entitled to have, planning curricula and preparing for classes, which real part-timers are not obligated to do. I did not just teach one, two, at most three classes per week, like real part-timers. I taught seven classes per week, not including committee work. I did research and had a budget for it. Real part-timers don't. I did not work as a part-timer, and the university never objected.

DEFENSE: No further questions.
===============================

It was a great way to summarize and cap the testimony.

/////////////////////////////////////////////////

CONCLUSION
LESSONS FOR THOSE WHO ARE THINKING OF LEGAL ACTIONS OF THEIR OWN:

If you ever reach the stage where you feel that 1) your legal rights can best be recognized by enforcing your constitutional privilege to sue in Japanese court, and that 2) it is better to go all the way to a verdict instead of settling out of court, then remember these things if you are not bilingual in Japanese:

1) Court Interpreters are appointed by the court, with absolutely no connection to or advance preparation for your case. They will be walking in cold, translating based upon the information of the moment.

2) The Court Interpreter's statements are crucial. The Interpreters' translations in Japanese, not your own statements in your native language, will be the ones entered onto the court record. According to Worthington's lawyer, the court stenographer will review the taped proceedings, make adjustments for grammar and clarity, and present it to the judge for the record. It is not clear whether the testifier may review the transcript before presentation to check the accuracy of her own statements. And of course if the testifier cannot read Japanese, this will be an arduous process indeed.

3) Do not anticipate a lenient judge. It is probable that the judge will not appreciate peanut-gallery comments, and may censure intervening spectators even when interpretation proves flawed.

4) Make it easier for the Interpreter. Keep sentences short and choppy if necessary. Take your time--for the Japanese courts over the past year or so have clearly been taking theirs. Make sure that documents presented to all parties and referred to in court are copied and given to the Interpreter as well (this is done by the court in advance, but the judge must be notified by your lawyer so preparations can be made).

Above all, remember that interpretation is a thankless job. Most people who are not bilingual and who have never tried to interpret for others take interpretation for granted: competence becomes mere background music, incompetence cacophony. I can personally attest that it is a harrowing experience. Walking in cold and having key words specific to a case, thrown at you in public and for the record, is one of life's more underrated tortures.

So do what you can to help the Interpreter help you, for comprehensive communication is the bedrock of your day in court.

/////////////////////////////////////////////////

With these lessons in mind, I hope that our court testimony, on March 11, 2002, goes well. Fellow Plaintiffs Ken Sutherland and Olaf Karthaus will have interpreters in their native language. I, after seeing somebody else mangle Worthington's words, have declined the privilege and will go it alone.

Wish us luck. More to follow.

Arudou Debito
Sapporo
February 28, 2002
http://www.debito.org

CORRECTIONS TO THE ABOVE REPORT FROM AYAKO CHINEN,
CYNTHIA WORTHINGTON'S PREFERRED BUT DENIED INTERPRETER

Date: Thu, 28 Feb 2002 18:58:16 +0900
Subject: Re: REPORT: Testifying in Japanese Court (PUK Case)
From: Ayako Chinen <ayac@sannet.ne.jp>

Dear Dave,

Thanks for the very informative report. I just got it, only skimmed through, and will read more thoroughly. Meanwhile, some comments on, mainly, the interpreter issue.

1) The interpreter "was" clued.

Our lawyers, through the court, provided Cynthia's deposition (or Chinjutsusyo in Japanese, which was submitted prior to her testimony), both the original English document and the translated Japanese version, to the interpreter more than a week before the day of the testimony. These over-A4-20-page-each documents narratively and chronologically detailed the case up until the settlement at the regional labour commission. In fact, the interpreter did seem to study on them, how much and and how efficiently I do not know so please don't ask, because I noticed that some of the names of the institutions, such as Foreign Language Education Centre, or Gaikokugo Kyooiku Senta, were properly interpreted. Regarding the fact that she did not have the exhibits at hand, yes lawyers on the both sides as well as the judge should have given them to her, but at the same time, a professional interpreter would have demanded to the judge or the lawyers before the judge suggested the lawyers to do so. Of course, it is better to have a larger background information, but to me, the J/E statement is quite sufficient, from an interpreter's standpoint. About the wording issue, represented by the sensei/kyoshi/kyoin distinction, it is a matter of linguistic sensitivity, not the so-called background information.

2) The court may have appointed her, but WE are the one who PAY for her service.

The lawyers were informed by the judge, when the defendant lawyer opposed to our choice of interpreter (me) based on the neutrality, that the interpretation fee would be somewhere over 30,000 yen. Although it is not a lot by the interpreter's standards (that's why good interpreters do not work for the court.), it is certainly not a peanut job. More than 30,000 yen for that level of interpretation, well, if I had been a client who got such service through an interpretation agent, I would have definitely demanded refund (which does sometimes happen).

It must have been a tough situation for the interpreter, surrounded by outspoken bilinguals. Nevertheless, especially for English/Japanese interpreters, such a situation is not rare any longer. I too encountered such situations so many times where the audience was all specialists of the field while I was the only novice (actually it is always the case when I do the interpretation for academic symposiums/workshops). Interpretation, as you know, is a tough, demanding, and stressful job, but so is any other job. If one cannot take it, then one should change the bread-earning job and become a volunteer or "for-pleasure" amateur. A paycheck entails responsibility.

3) Cynthia's sentence was not too long.

I, as a professional interpreter, do not think Cynthia's sentences were too long. If they had been so for the interpreter, then she should have taken notes, which I did not see her doing so even once. Moreover, retention is one of the first things one is trained to acquire in the interpretation school/course. In other words, it is an essential element of the job.

All in all, I am not as lenient and sympathetic as you are, especially when she was supposed to be professional. I do not want to be in her shoes, either, but to me, that was a self-inflicted situation. She could have studied further on this case, she could have sophisticated her interpretation skill and linguistic sensitivity through everyday study. If one is not prepared for such study, then one should not become an interpreter from the first place. If she learns from this horrible
experience and determines to polish her skill, that is great. But, it is too big a price for us, especially for Cynthia, to pay for a total stranger. I may sound really cruel, but, as someone in the interpretation/translation industry, that level of interpretation really spoils the reputation of the industry as a whole, and believe me, I have seen enough and much too many.

Signed and sighed, Aya.


PUK REPORT ENDS

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