The right to a fair trial for defendants in the criminal process is internationally recognised as a fundamental human right that, among others, includes the right of defendants to have the free assistance of an interpreter if they cannot understand or speak the language used in court. The failure to provide the required interpreting service or a deficiency in the service provided can be raised as grounds of appeal for potentially denying or compromising defendants’ right to a fair trial. This article discusses the limitations of chuchotage, a mode of interpreting commonly used in domestic courts. These limitations potentially compromise interpreting accuracy, and, specifically, the absence of a record of the interpretation can spell problems for appellate courts dealing with appeals advanced on the ground of the deficient interpreting provided in this mode. This study reviews four such appeals in Hong Kong and reveals inconsistencies in the appellate courts’ rulings and the reasoning behind their decisions. This study argues that these inconsistencies can lead to problems with implementing the principle of stare decisis, while at the same time sending confusing messages about the standard of interpreting required to safeguard a defendant’s right to a fair trial and about the future use of chuchotage in court.
In an adversarial common-law courtroom, where one party tries to defeat the other by using words as weapons, polysemous words more often than not pose a problem to the court interpreter. Unlike in dyadic communication, where ambiguity can be easily clarified with the speaker by the hearer, court interpreters' freedom to clarify with speakers is to a large extent restricted by their code of ethics. Interpreters therefore can only rely on the context for disambiguating polysemous words. This study illustrates the problem of polysemy in an interpreter-mediated rape trial. It exemplifies how the interpreter's goal to avoid contradictions by making her interpretation of a polysemous word consistent with the preceding context runs counter to that of the bilingual cross-examiner, whose primary goal is to identify inconsistencies in the hostile witness's testimony in order to discredit him. This study also manifests a denial of the interpreter's latitude in the interpretation of contextual clues and her loss of power in a courtroom with the presence of other bilinguals.
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