“Equality of Arms” and Interpretation
“Equality of Arms” is a legal expression that means that each party must have a reasonable opportunity to defend its interests under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent. In a judicial proceeding, the Defense and the Prosecution must be treated equally before the Court, including for instance having equal access to evidence or equal amount of preparation time for the case. This also means that when one party is linguistically disadvantaged, interpretation should be provided to fill this gap and ensure that both parties are able to follow the proceedings.
Is this principle of “Equality of Arms” always applied as far as language issue is concerned?
In my experience, it is always the case in a U.S. court setting. The accused or victim with Limited English Proficiency (LEP) always receives interpretation. It is the law. So in principle the “Equality of Arms” is applied. However, the question is whether it is applied efficiently.
The party receiving interpretation may normally be able to follow equally the proceedings if the following rules are respected:
The LEP party receives interpretation in the right language.
I have been called many times to interpret in Haitian French or Canadian French but had to decline because although there are some similarities, both are different from Standard French.
The interpreter does render exactly what is said during the proceeding.
The interpreter is in a very challenging position since he/she is expected to provide outstanding services, and very often not always in the best conditions. Interpreters are expected to know all the legal jargons and terms and any mistake can be costly (figuratively and literally).
The parties (especially judges and lawyers) do not speak all at once, speak too fast or too low.
This is one of the most frustrating experiences because it occurs almost all the time. For the interpreter to be efficient, he/she needs to be able to hear and understand what is being said. I have seen some judges speaking too low, lawyers speaking way too fast or arguing with each other, making it almost impossible to render the exchanges to the LEP.
The lawyers provide the necessary case information to the interpreter.
Interpreters are usually called upon with very limited information on the case involving the LEP party. Lawyers should provide as much background information as possible to the interpreters so that they can perform more efficiently.
So while the principle of equality of arms applies in a court setting, it is not always applied efficiently. Interpretation services are made available for LEP parties, however many remain disadvantaged because either the conditions are not met for the interpreter to interpret efficiently or the interpreter is just not performing well enough to allow the party to follow the proceeding. It is therefore essential that all parties involved do their utmost to facilitate the work of the interpreter and that the interpreter possesses the right language and skills to perform effectively.