The unique CHALLENGES of cross-cultural JUSTICE
The United States calls itself a nation of immigrants. Census data bear out the fact. There are now more than 37 million foreign-born residents of the United States, and almost 55 million residents who speak a language other than English at home.' Historically, most U.S. immigrants have been European. In contrast, more than half of our foreign-born residents today come from Latin America, roughly a quarter come from Asia, and only about 14 percent come from Europe.2 Today, more than 300 different languages are spoken in the United States.3 And, in the 2000 census, almost five percent of the population reported that they speak English "not well" or "not at all."4 Moreover, language is not the only potential barrier to understanding. Except for adopted infants and toddlers, each resident who comes to the U.S. from abroad brings with her cultural mores from her native land, some of which may be completely foreign to native-born Americans.
As our population becomes more diverse, those involved in our judicial systems - whether as civil litigants, criminal defendants, counsel, or jurors - will be more diverse as well. I vividly recall a case early in myjudicial career, when I was sentencing a Mexican citizen. As I spoke to him, he looked down, never making eye contact with me. I grew increasingly frustrated with what I thought was his disrespectful attitude, until finally I instructed him to look at me while I was speaking. The interpreter, with whom I had a very good relationship, immediately asked to approach the bench. The interpreter explained that, contrary to my edinocentric perceptions, the defendant was actually intending to convey respect by averting his eyes as a sign of deference and submission. I suddenly realized that I was navigating a cross-cultural minefield witfiout a map, largely oblivious to my potential misconceptions and inaccurate conclusions.
Our courts' treatment of jurors and witnesses is often similarly uninformed and/or insensitive. In some cultures, men and women typically do not mix in relatively small, confined spaces. For them, the close quarters of a jury room can be very uncomfortable. Certain faiths require prayer at regular times throughout the day, but we generally are not prepared to accommodate such practices in our courthouses. Religious observances may require that persons wear veils or cover their heads, two traditions that are at odds with what is expected in court. And we are particularly reticent to allow witnesses to testify with their faces partially covered, given the general view in both our legal system and our culture that observing expression and demeanor is a particularly effective way of evaluating credibility.
The increasing diversity of our nation also translates into an urgent and growing need for greater numbers of court interpreters, in more languages. It is not enough that interpreters be bilingual. Interpreters used in the courts need to be fluent in legal and forensic terminology too.5 The Court Interpreters Act of 1978 requires federal courts to provide interpreters for persons with limited English proficiency in all government-initiated proceedings; but not all state courts have comparable requirements. …