Linguistic Study of Court Interpreting in Lay Judge Trials in Japan

Abstract

In Japan, the increase of immigrant workers who do not speak Japanese is a relatively new phenomenon and the government is not yet fully prepared to cope with the resulting communication problems. Language services such as interpreting and translation for non-Japanese-speaking residents have been made available, often on an ad hoc basis. There is no well-developed public certification system nor systematic training programs for so-called “community interpreters.” This article mainly discusses current issues of court interpreting which is one of the most important areas of community interpreting and research findings of recent years, with a special focus on the lay judge system introduced in 2009. There have been several interpreter-mediated court cases in which accuracy of interpreting became an issue. Most such problems are due to the poor interpreting skills of some court interpreters and the lack of a proper screening system and adequate training programs. Recent linguistic studies based on court experiments have revealed that court interpreters’ renditions influence the formation of impressions by and decision-making of lay judges. An example of such findings is that if the interpreter chooses words which have more incriminating connotations, lay judges tend to perceive the defendant as more blameworthy. Court interpreters can affect legal proceedings in many ways, even when they make no obvious mistranslation in meaning. These kinds of data-driven linguistic studies can elucidate realities in terms of the impact of interpreting, which can lead to better awareness toward quality control in various areas of community interpreting.

Introduction

With the sudden increase of foreign nationals living in Japan beginning in the 1980s, the issue of communication breakdown has surfaced in various spheres of daily life. “Community interpreting” is a key concept in dealing with this new social phenomenon. Along with health care interpreting, legal interpreting is an area of community interpreting in which the quality of interpreting is crucially important. Without interpreters, due process of law could not be guaranteed to non-Japanese-speaking foreigners involved in criminal proceedings. Also, high-quality interpreting should be a primary concern, because conveying speech accurately is one of the most important elements in legal procedures. Poor interpreting might distort the facts and bring about a miscarriage of justice.

In order to guarantee quality interpreting in court, it is necessary to define accurate interpreting. Accuracy in interpreting, or fidelity to the original speech, does not just mean conveying the correct meaning of the speech in the source language, but also how the speech is rendered in the target language. The register and speech styles interpreters use, and which words they choose when translating certain words in the original speech, are critical factors in realizing equivalence between the original and the interpreted versions of speech. Linguistic studies should be conducted to determine how and to what extent interpreters’ renditions influence the impressions and judgments of hearers (in the case of criminal justice, hearers are judges and lay judges). “Forensic linguistics,” which had not been very widely known in Japan, is drawing attention these days, and the study of legal interpreting has come to be regarded as one of the important focuses in this field. This article discusses current problems of court interpreting and introduces the findings of the recent linguistic studies on court interpreting, mainly in terms of its impacts on the formation of impressions and decision-making in lay judge trials.

Background

Increase of Foreign Workers and “Community Interpreting”

From the end of the seclusion policy of the Edo period until the time soon after World War II, Japan was a country sending immigrants rather than receiving them. There were waves of Japanese emigration to Hawaii, the west coast of the United States, Latin American countries, Manchuria in China, and so forth. However, the “Bubble Economy,” an economic boom that occurred during the latter half of the 1980s and the early 1990s, attracted a large number of immigrant workers from all over the world, particularly Asian and South American countries such as China, Korea, Brazil, the Philippines, Peru, etc. Since then the number of such newcomers has continued to increase. According to the Immigration Bureau of Japan, the number of registered foreigners hit a record high of about 2.21 million in 2008, or 1.74% of the total population. The number has gradually declined since 2009 due to the economic recession that followed the Lehman Shock in 2008 and East Japan Great Earthquake in 2011, but in 2013, it started to pick up again and the tendency to increase has been continuing.¹

Until the time of the bubble economy, most foreign nationals in Japan were so-called zainichi—Koreans who had lived there for a long time and often spoke Japanese as their first language. Currently, however, the majority of foreign nationals are newcomers, and many are not able to communicate fluently in Japanese, which makes their presence more conspicuous. In various spheres of daily life, they face communication problems, and new types of interpreting and translation services have emerged, which are collectively called “community interpreting.” (For details, see Mizuno.²)

Criminal Cases Involving Non-Japanese Speakers

Against this background, the number of foreigners involved in criminal cases has also rapidly increased, and the communication problems at every stage of criminal procedures have become an urgent issue. Legal interpreting began to draw attention around the end of the 1980s. Although Japanese codes of criminal procedure do not stipulate court interpreters as a right of defendants, the Japanese government has ratified the International Covenant on Civil and Political Rights, which guarantees the rights of minorities, including the right to free interpreting services in criminal proceedings. Also, Article 31 of Japan’s Constitution guarantees due process of law in criminal proceedings to everybody. Therefore, the right of the defendant to participate both physically and linguistically in criminal proceedings should be fully guaranteed to foreigners in Japan. By the turn of the twenty-first century, the system of appointing legal interpreters had improved significantly in each judicial branch in Japan. In most cases, non-Japanese-speaking suspects’ right to an interpreter of their native language is now guaranteed, although there have been a few cases of relay interpreting when a very minor language was involved.

In court, for example, most foreign language-speaking defendants can have an interpreter of his/her own language, and have all the court proceedings interpreted for him/her. In 2011, of the 65,618 defendants nationwide who were tried at district and summary courts (the lowest courts in the Japanese hierarchy), 2,644 needed a legal interpreter, which is about four percent of the total.³ These defendants were from 77 nations, and the most needed language was Chinese (33.4%), followed by Filipino (12.2%), Korean (9.4%), Portuguese (8.3%), and Vietnamese (7.9%). As of April 2012, 4,067 interpreters of 62 languages were on the lists of courts nationwide.⁴

Issues of Quality Control in Interpreting

Although the system of appointing legal interpreters is well developed, there has not been much progress in terms of quality control. So far, there is no certification system for legal interpreters in Japan. For instance, screening for court interpreters is done through interviews of candidates by a judge. Candidates are questioned regarding their language ability, overseas experience, interpreting experience, and so forth, but there is no test of actual interpreting skills. Consequently, even those with no training as interpreters are often registered.

Training programs are provided by district courts across the country. However, these programs are far from sufficient. There are only three kinds of programs, all of them short: an introductory program for newly registered interpreters, a seminar for interpreters who have experiences of interpreting to a certain degree, and a follow-up seminar for very experienced interpreters.⁵ These courses are conducted once a year, last two days, and are only available to interpreters of certain languages, meaning many languages are never covered. Moreover, while the training programs include instruction on legal procedures, legal terms and interpreters’ ethics, they do not include linguistic knowledge and advanced interpreting skills.

Under such circumstances, quality interpreting cannot be guaranteed. Abilities vary from person to person, so it is not surprising that some interpreters lack the skills to interpret properly in a courtroom. There is no way to detect and dismiss poorly performing interpreters. The situation is similar in every judicial branch. Accuracy is the most crucial element in legal interpreting, but because of the lack of proper quality control, there have been several cases in which inaccurate interpreting became an issue, and in some cases constituted grounds for an appeal (cf. Nick Baker Case⁶).

Lay Judge Trials and Court Interpreting

Introduction of the Lay Judge System and Its Ramifications

In May 2009, Japan introduced the so-called lay judge system as an important element of judicial reform. In this system, six citizens randomly selected from the voter rolls serve as lay judges and, along with three professional judges, decide whether a defendant is guilty. In the case of a guilty verdict, the lay judges also collaborate with the professional judges in deciding the sentence. The crimes adjudicated in lay judge trials are felonies such as murder, robbery resulting in death or injury, arson, and smuggling of illegal stimulants, which can involve the death penalty or imprisonment without a fixed term.

This new system has posed new challenges for court interpreting. Unlike conventional trials that emphasize documentary evidence, testimony is regarded to be more important in the lay judge trial. Under the principle of direct trial, the evidence orally presented in court is the only evidence that the judgment can be based on, which means that in court, it is not only what is spoken but how it is spoken that is of great importance.

Moreover, when compared to professional judges, lay judges seem more emotional, and according to Hotta,⁷ they tend to pay more attention to the mental state of a defendant, and base their decisions on factors such as character, psychological tendencies, whether the defendant deserves their sympathy, etc. This implies that lay judges are more likely to be influenced by impressions created by testimony; in other words, by “impressions of speech.” A court experiment using mock lay judges⁸ detected a tendency in lay judges to unconsciously regard the interpreter’s speech as the speech of the defendant or the witness. Therefore, interpreters face difficulties in translating nuances and registers of testimony, because the choice of expression in court has a great influence on the decision making of lay judges and ultimately it serves as a very important factor for ensuring a fair trial.

In September 2009, the first lay judge trial of a non-Japanese-speaking defendant was conducted in Saitama prefecture, and by the end of 2012 there had been 458 cases with interpreting nationwide.⁹ As a result, many problems related to court interpreting have surfaced, including interpreting errors and communication breakdowns. The challenges posed by the participation of ordinary citizens seem to be amplified in interpreter-mediated trials.

Issues Surrounding Court Interpreting in Lay Judge Trials

The elevated importance of oral testimony in lay judge trials amplifies the significance of accurate interpreting. As stated above, however, without a certification system there is no way to detect and discharge poorly performing interpreters. In addition, even though lay judge trials are characterized by long sessions, it is not mandatory to assign two or more interpreters to a trial. In many cases, only one interpreter is assigned, and that person interprets throughout the trial, which sometimes lasts for five to six hours per day. Even with breaks during a session, the fatigue of the interpreter becomes significant. The fatigue of the interpreter is one of the most significant factors contributing to poor quality interpreting. Studies related to this theme, such as Mizuno and Nakamura,¹⁰ Moser-Mercer et al.,¹¹ and Watanabe et al.,¹² found that interpreter performance deteriorates after about an hour. These factors have led to problematic interpreter-mediated court cases.¹³

Research on Legal Interpreting

Several cases of poor performances by court interpreters have been revealed so far, but whether the quality of interpreting actually affects legal proceedings, and to what extent inaccurate interpreting affects decision-making of the court, has not yet been fully examined. Linguistic research could provide evidence-based answers to such questions. Research has been conducted on legal interpreting in Japan since the 1980s, but it was only well after 2000 that linguistic studies began to be undertaken.

Past Research

Research on legal interpreting as one of the important areas of community interpreting has been actively conducted since the 1980s, mainly in the Western nations. Against the background of the sudden increase in interpreter-mediated criminal cases, the earliest studies of legal interpreting in Japan began in the late 1980s by an initiative of practicing lawyers and legal scholars, who focused their studies mainly on access to fair trial in the context of the human rights of foreign workers. Some studies focused on overseas laws related to legal interpreting,¹⁴ while others compared international laws and domestic laws.¹⁵ Their work led to broad recognition that foreigners in Japan face problems of non-communication or miscommunication that threatens their right to a fair trial. Practicing interpreters and scholars interested in interpreting later collaborated with lawyers in the study of legal interpreting, and began conducting interdisciplinary studies, which led to a greater focus on interpreting itself. Mizuno,¹⁶ Tsuda,¹⁷ and Watanabe and Nagao¹⁸ are representative of such studies. The main purposes of this phase of research were to analyze the contemporary status of legal interpreting and raise awareness of the critical nature of interpreting among interpreters and lawyers.

Beginning in 2000, the Ministry of Justice of Japan dispatched groups of researchers, mainly from academia, to countries with legal interpreting systems considered to be well developed.¹⁹ They gathered information about the laws governing legal interpretation, the systems of certifying and assigning legal interpreters, etc. The data were then compiled into a report on each country, and these reports were submitted to the Ministry.²⁰ Around this period there was a significant number of published studies on overseas legal interpreting.²¹

Past Linguistic Studies

Linguistic studies of court interpreting have been actively conducted in recent years. Among the main research themes are: What is happening linguistically in interpreter-mediated courts? Is the fairness of trials assured? In order to guarantee a fair trial to non-Japanese-speaking defendants, accurate interpreting is crucial, and the accuracy of interpreting can be judged only by linguistic analysis. Also, linguistic analysis can determine how the renditions of interpreters influence the formation of impressions, and ultimately decision-making by judges.

Extensive research on this context has been conducted overseas.²² The most noteworthy study is Berk-Seligson’s The Bilingual Courtroom, ²³ in which the author conducted ethnographic analyses of Spanish-English interpreting in criminal courts in the United States and psycholinguistic experiments using mock jurors. She found that the language interpreters use can affect judicial proceedings, and the speech styles of and pragmatic alterations by interpreters do influence the judgment of mock jurors. Hale’s The Discourse of Court Interpreting ²⁴ elucidated how court interpreters make pragmatic alterations to the original speech based on the data extracted from local court hearings. Lee’s “Translatability of speech style in court interpreting”²⁵ argued providing evidence from the data of Korean-English court interpreting that it was extremely difficult for court interpreters to accurately render stylistic features.

In Japan, there has been a variety of approaches to this area of study. For example, Mizuno²⁶ dealt with the issue of equivalence of legal intent and effect between the original and the translation of sentence sheet; Nakamura²⁷ and Nakamura and Mizuno²⁸ discussed the issue of the lexical choices of court interpreters from a corpus linguistic approach; Yoshida²⁹ examined the footing (participation status) of court interpreters drawing on the communication model of linguistic anthropology; Nakamura and Mizuno³⁰ discussed the impacts of the speech styles of court interpreters on lay judges based on statistical analysis; Mizuno and Nakamura³¹ analyzed the levels of fatigue of court interpreters based on spoken data from a mock trial, and Mizuno³² focused on issues of pragmatic alterations by interpreters, focusing on fillers, back-tracking and rephrasing.

Court Experiments on the Influence of Interpreters

This section discusses findings of two of the most recent studies focused on the impact of court interpreting on impression and judgment of lay judges.³³ These studies are based on court experiments conducted in 2011.

The most desirable method of linguistic studies of court interpreting should be analyzing audio recordings from real trials, but in Japan it is extremely difficult for researchers to obtain such recordings. Only when lawyers need linguistic analysis by experts they can get access to recordings. Therefore, as a second best option, court experiments were conducted to obtain such data. Points of analysis were embedded in scenarios created for the experiments. To assure the authenticity of the scenes used in court experiments, scenarios were based on samples of real court conversations provided by practicing lawyers.

Experimental Methods

Scenarios were created based on real cases. The scenes depicted the defending lawyer’s questioning of a foreign language-speaking defendant (English) in court. Based on the scenarios, two movies with different interpretations were created. In each version, different Japanese words and expressions were chosen for the same foreign language expressions used by the same mock defendant speaking in the same tone of voice. They were played to two different groups of men and women of varying ages and backgrounds who had been provided by a personnel placement agency as mock lay judges. Version A was played to 41 mock lay judges and Version B to 39. After viewing the movie, the mock lay judges were asked to reply to a seven-point Likert-scale questionnaire concerning their impressions and judgments. They evaluated the defendant’s guilt for Court Experiment 1 and his remorse for Court Experiment 2.

Court Experiment 1

Research question: Does the interpreter’s choice of vocabulary, incriminating words or neutral words, influence lay judges’ impressions and decisions regarding of the gravity of the defendant’s guilt?

Scene: A defending lawyer’s questioning of a foreign-language-speaking defendant charged with robbery resulting in injury.

Movies: Two movies were created with different interpreting, one using words and expressions with incriminating connotations and the other using neutral expressions.

Examples:

The original: I thought to take the bag.

Version A: Baggu wo torou to omoi mashita [I thought to take the bag.]

Version B: Baggu wo ubaou to omoi mashita [I thought to rob the bag.]

The original: (I thought) I could take the bag.

Version A: Toreru no deha nai ka [I could take the bag.]

Version B: Hittakureru no deha nai ka [I could snatch the bag.]

The original: I was walking behind her.

Version A: kanojo no ushiro wo aruite imashita [I was walking behind her.]

Version B: kanojo no ato wo tsukete imashita. [I was shadowing her.]

The original: I went to pick it up.

Version A: hiroi ni iki mashita [I went to pick it up.]

Version B: ubaitori ni iki mashita [I went to rob the bag.]

Hypothesis: Mock lay judges who view Version B will form an impression that the defendant is more guilty than mock lay judges who view Version A, because the translation sounds more incriminating in Version B.

Fig. 1

Frequency distribution of mock lay judge verdicts (%)

Findings:

Most of the mock lay judges who saw Version B of the movie felt that the defendant was guilty or absolutely guilty, while the largest number of the mock lay judges who saw Version A felt that the defendant was possibly guilty. The number of mock lay judges who felt that the defendant was not guilty or possibly not guilty was much bigger for Version A than Version B (see Fig. 1).

Table 1 Judgment of the defendant’s being guilty or not guilty as evaluated by the mock lay judges: Results of the Chi-Square Test (The data is from Nakamura, 2013a)

There was a statistically significant difference with a significance level of 1% between Versions A and B in terms of the judgment of the defendant’s being guilty or not guilty (X ² = 20.420, df = 6, p < .05) (see Table 1).

Table 2 Degree of remorse as evaluated by the mock lay judges: Results of the Chi-Square Test (The data is from Mizuno et al. 2013)

Conclusion 1: If the interpreter uses words and expressions which have criminal connotations, lay judges are likely to feel that the defendant is guilty. The hypothesis is supported.

Court Experiment 2

Research question: Are the impressions of lay judges influenced by whether the interpreter gives a culturally adjusted translation of the defendant’s words of remorse?

Scene: A defending lawyer’s questioning of a foreign-language-speaking defendant charged with robbery resulting in death.

Movies: Two movies were created with different interpreting; Version A was made to sound more natural in Japanese with a culturally adjusted translation of the defendant’s words of remorse.

The original: I feel very sorry about it.

Version A: Hontou ni moushiwake naku omotte imasu. [I’m very remorseful for it.]

Version B: Totemo zannen desu. [I regret it very much. / It’s really a pity.]

Hypothesis: Mock lay judges for Version A will believe that the defendant feels more remorse, because the translation matches the way Japanese speakers usually express an apology, while the translation in Version B is not a typical Japanese apology.

Fig. 2

Frequency distribution of degree of remorse of the defendant in impression of mock lay judges (%)

Findings:

For Version A, a stronger tendency is observed among mock lay judges to find the defendant feeling remorse (see Fig. 2).

There was a statistically significant difference between Versions A and B in terms of the evaluated degree of the defendant’s remorse (X ² = 14.594, df = 6, p < .05) (see Table 2).

Conclusion 2: If the interpreter culturally adjusts the defendant’s words of remorse, lay judges are more likely to feel that the defendant is really feeling remorseful. The hypothesis is supported.

Discussion

Based on the results of the court experiments 1 and 2, which were intended to identify the influences of lexical choices made by interpreters on the impression formation and decision making of lay judges, the following can be asserted:

• (1) The lexical choices of interpreters seem to influence lay judges’ impressions and decision-making. There seem to be many people, including the judiciary, who believe that interpreters have little influence on the decision-making of the court, unless the interpreters make clear mistranslations. However, it has been made evident that interpreters’ inadvertent choice of inappropriate vocabulary does influence court proceedings, and this cannot be overlooked as mere “free translation.”

• (2) If an interpreter uses incriminating words and expressions instead of neutral ones, lay judges tend to judge the defendant more guilty. As stated earlier, if lay judges unconsciously regard the interpreter’s speech as the speech of the defendant or the witness, the interpreter’s choice of words might serve as a determining factor in the decision-making of the court.

• (3) Lay judges’ evaluations of the degree of remorse of the defendant are also influenced by the interpreter’s choice of expressions. There are various ways to express remorse depending on language. The conventional phrases most commonly used by a certain cultural group can be the most acceptable and effective expressions of remorse for them, but the impact of an apology could be lost because those phrases sound unnatural and cause an out-of-place feeling in others. Expressing remorse seems to be a very important factor in a Japanese trial, and therefore how the interpreter renders the defendant’s apology might serve as a critical factor in the decision making of the lay judge court. Generally speaking, however, whether court interpreters should play the role of a cultural mediator is still open to argument.

Conclusion

The system of appointing interpreters at every level of legal proceedings is relatively well developed in Japan, but the issue of quality control of interpreting has as yet scarcely been dealt with. So far several court cases with problematic interpreting have been reported, but how poor quality interpreting actually affects the judicial proceedings has only recently started to be examined. With the recent emergence of the field of “forensic linguistics” in Japan, linguistic analysis of court interpreting as a data-driven scientific study has come to be actively conducted. Such studies can elucidate realities in terms of impacts of interpreting in legal proceedings. Due process of law and equal access to a fair trial can be guaranteed only through adequate communication. In order to achieve adequate communication in interpreter-mediated proceedings, the mechanisms and impacts of interpreting should be fully understood by all the participants in the proceedings.

Fortunately, the importance of language and communication in legal settings seems to be slowly but steadily gaining the recognition of legal practitioners. Okawara³⁴ discusses the issue of language use in lay judge trials focusing on difficulties lay judges face in understanding legal terminology and suggests that to achieve a fruitful deliberation in a lay judge trial legal experts need to work with language experts. Collaboration between legal experts and linguists is also a key to achieving effective communication in interpreter-mediated trials. In August, 2013, the Japan Federation of Bar Associations submitted an opinion paper to the Supreme Court, the Supreme Public Prosecutor’s Office, and the Ministry of Justice calling for remedies to the problems surrounding legal interpreting.³⁵ The report stresses the need for certifying and training interpreters to guarantee quality interpretation. It incorporates the findings of the above mentioned linguistic studies, such as Mizuno and Nakamura 2010³⁶ and Nakamura and Mizuno 2010,³⁷ as supporting evidence for its argument and proposal. This event is noteworthy in that legal practitioners listened to what linguists said. Likewise, it is expected that findings from linguistic studies supported by scientific data including the above can be applied to various areas of community interpreting and will significantly contribute to improving the quality of interpreting, as they demonstrate how interpreters affect communication in the courtroom context.