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“What’s a Klondike Bar?” More on the need for sensitivity to foreign language speakers

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One day at a convenience store, I heard a man around sixty — clearly American born — inquire of the cashier: "What’s a Klondike Bar?" I resisted the urge to proclaim it is a delicious combination of vanilla ice cream surrounded by chocolate (I was not yet a vegan at the time); in part because it seemed strange that at his age he would not have known what a Klondike Bar was. The cashier — around 24 and also clearly American-born — replied "A dollar." The customer replied "Thanks,", paid and left.

Those two men understood that the customer was asking the price of a Klondike Bar. I was left scratching my head about where English language usage had slid that such an incorrect usage of English would have been used and understood by two native English speakers.

A client once told me about a federal administrative law judge — clearly American-born — who got irritated and impatient when asking him: "Are you "ell ee" or "ell eye"? English was his second language, and my client did not understand the question, nor did I. The judge got irritated and repeated the question. Still, my client did not understand. As it turns out, my client’s name was Giovanni Vitale (I have made up his name here), and the judge was misusing the English language in her effort to find out if my client’s name ended in LE versus LI.

Next, how about the myriad native English speakers who misuse myriad as a noun ("I saw a myriad of people that night") versus using it correctly as an adjective. ("Myriad people swarmed the stadium.")

Most police are not tested on their wordsmithing precision to be admitted to the police academy, and plenty of police reports bear that out. Police are taught to mess up English language usage even more by writing in the passive voice (possibly so as not to reveal which cop did what, lest the defense lawyer figure out whether the prosecutor’s necessary witnesses have arrived to the trial date): "Two boxes of ziploc bags were found in the glove compartment." They are also taught to use English as if they were from another planet: "I exited my cruiser" (translation: I got out of my car); "We made a knock and talk" (translation: we went to the suspect’s house to see if he would speak with us); "I responded to the T/A" (translation: I drove to the store after hearing a radio run about something suspicious there"); "I made contact with the owner" (translation: I spoke with the owner); and, then, the euphemisms ("While attempting to place the suspect in handcuffs, we escorted him to the ground; we offered to take him to the hospital") (translation: we tackled the suspect face-first into the pavement, breaking his nose and necessitating an ambulance."

Now, with so much garbled, unclear, and messed-up use of English by native English speakers — even by various people who have gone to law school — is it any wonder that even a very experienced speaker of English as a second language ("ESL") will often misunderstand plenty of what cops say to them, particular in the less-than-ideal circumstances of cops running on adrenaline, loud streetscapes with sirens and lights blaring, the fear and distraction of being forced to be with a police officer with a badge/power of arrest/taser/gun, and cops needing to move things along in order to return to the road to stop more suspects?

Yet, particularly with judges insufficiently experienced with English as a second language — meaning never having struggled to live in another country using a second language, starting with hoping that the corner restaurant does not mistake one’s food order as requesting horsemeat — too many judges do not allow sufficient room for those speaking English as a second language to misunderstand the police and miscommunicate to the police due to the nuances and hurdles of communicating in a second language, and for such suspects to be slower and more distracted in trying to follow a police officer’s instructions (including field sobriety test instructions in drunk driving cases), to the point that my efforts to present the English as a second language theme to the defense can meet with skeptical judicial eyes (and jurors’ eyes) at best.

Let’s face it. Not until the last twenty years have Americans recognized how critical it is to know a second language well to thrive in this global economy, seeing that up until the 1980’s, international trade only made up ten percent of the American economy. Not so any longer. Consequently, those who went to secondary school and college in the 1980’s and before are even less likely to have struggled to gain workable conversational abilities with a foreign language — let alone the many who went to high school and college thereafter — and less likely to accept that just because a speaker of English as a second language has been in the United States for even twenty years or longer, s/he always will understand his or her native language best.

When a cop insists "He understood English just fine the night I arrested him," often the cop is really exhibiting his or her lack of appreciation of the difficulty that ESL speakers have in understanding English, let alone further problems of ESL speakers (and native English speakers, as well) understanding police-ese in stressful situations; disingenuousness; or defensiveness to try to avert an acquittal based on foreign language issues.

Bringing in a foreign language interpreter does not fully solve the situation for ESL speakers. Language interpretation is an art, not a science. Merely speaking two languages fluently does not automatically make one a qualified courtroom interpreter. Imagine the memory, intelligence and focus needed for a person to follow and simultaneously interpret what more than one party is saying? Not all courts have sufficiently rigorous standards for vetting interpreters, particularly when it comes to languages other than the most popular ones (including Spanish, French and Chinese). Not all interpreters have the patience to not cut corners when trying to interpret for someone who speaks too fast, too softly, or is not very intelligent, and to not cut corners so as to move things along, and to appease judges who want to move things along, to the point of failing even to ask judicial permission to seek clarification from the speaker. Lengthy interpretation (taking over two hours) calls or tag team interpreting to avoid exhausting an interpreter’s throat or concentration. I have heard plenty of interpreters who seem qualified at first blush but then misinterpret either because they are daydreaming, or because they are fish out of water experiencing stagefright as they struggle with the stressful and fast-paced setting of a courtroom, or because they simply are not qualified.

Today’s blog entry was spurred by this past Monday’s Fourth Circuit’s re-stating "three types of evidence which tend to prove a translation was incompetent": "(1) direct evidence of incorrectly translated words; (2) unresponsive answers by the witness, which provide circumstantial evidence of translation problems; and (3) a witness’s expression of difficulty understanding what is said." Singh v. Holder, ____ F.3d ___ (4th Cir., Nov. 5, 2012) (slip op. at n.19, quoting Perez-Lastor, 208 F.3d at 778).

What’s a Klondike Bar?