Fundamental fairness in court proceedings requires that every participant is able to understand and communicate effectively. A paramount concern for judges, attorneys, and others taking part in legal actions should be that no person is denied the ability to communicate in court. Judges and attorneys are familiar with the requirement that defendants in the criminal justice system be informed of their rights. That same standard of advisement and understanding should prevail when evaluating whether interpreter services are necessary. Skilled interpretation and translation enable courts to accurately gather all the facts and make informed decisions. By making certain that all participants understand what is happening to them in court, it is ensured that court processes remain understandable and accessible.
This handbook and its appended Model Code serve as directory and reference guides for implementing N.D. Sup. Ct. Admin. R. 50. They are intended to be used when the court, attorneys or others are made aware of the need for interpreter services. The controlling principle found throughout this handbook is that every litigant should be afforded the opportunity to understand and participate in the court process.
B. What is the Role of a Court Interpreter?
For courts, interpreting is the unbiased oral translation of testimony, documents, instructions, rulings of the court and arguments of attorneys, by a qualified neutral interpreter, so that a court or jury might correctly determine the facts of the case at hand.
C. When Should I Appoint an Interpreter?
1. An interpreter should be appointed for a litigant when the person:
a. Is unable to accurately describe persons, places, and events;
b. Is unable to tell the court "what happened" over a period of time;
c. Is unable to request clarification when statements are vague or misleading, to defend a position, or otherwise participate in the case;
d. Is not on an equal footing with an English-speaking person with an equivalent education and background;
e. Is a person who cannot speak or understand English and has the right to have the proceeding simultaneously translated to allow for effective participation.
2. In the event a non-English speaking defendant appears in a criminal case without counsel or expresses an intention to proceed without counsel, it is highly recommended that the court appoint counsel, even if on a stand-by basis, to ensure interpreter issues are adequately addressed.
3. There may be circumstances in which a court may consider it appropriate to appoint a foreign language interpreter in a civil case.
4. An interpreter should be appointed for a witness, when the witness cannot speak or understand English and is required to provide testimony, and;
a. Is unable to accurately describe persons, places, and events related to the case;
b. Is unable to tell the court "what happened" over a period of time; or
c. Is unable to understand or respond to questions posed during direct or cross-examination.
D. Authority for Appointment of Interpreters
North Dakota law and court rule describe the obligation, or discretion, to appoint an interpreter.
N.D.C.C. § 31-01-10 provides:
"When a witness does not understand the English language or speak the English language, or is deaf or unable to talk, an interpreter must be sworn to interpret for the witness. Any person who is a qualified interpreter may be subpoenaed by any court or judge to appear before such court or judge to act as an interpreter in any action or proceeding. The subpoena must be served and returned in like manner as a subpoena for a witness. Any person so subpoenaed who fails to attend at the time and place named in the subpoena is guilty of contempt."
N.D.C.C. Ch. 28-33, generally, describes the obligation of an "appointing authority" to provide an interpreter at all stages of any judicial or administrative proceeding for a deaf person who is a "principal party in interest."
Rule 28(b) of the Rules of Criminal Procedure provides:
"The court may appoint an interpreter of its own selection and may fix the reasonable compensation of such interpreter. The court may direct that such compensation be paid out of such funds as may be provided by law."
North Dakota Court System Policy 522 provides:
"Interpreters will be provided at no cost to a Limited English Proficiency individual or deaf
individual under the following circumstances:
For deaf or hearing impaired individuals who are a litigant or witness in any type of case
For Limited English Proficiency litigants and witnesses in criminal, administrative traffic,
or infraction cases
For Limited English Proficiency litigants and witnesses in juvenile hearings
For Limited English Proficiency litigants and witnesses in Mental Health cases under
N.D.C.C. ch. 25-03.1
For Limited English Proficiency litigants and witnesses in Sexually Dangerous Commitment
cases under N.D.C.C. ch. 25-03.3
For Limited English Proficiency litigants and witnesses in Guardianship cases under
N.D.C.C. ch. 30.1-27 (minors) and 30.1-28 (incapacitated person)
For Limited English Proficiency litigants and witnesses in Conservatorship cases under
N.D.C.C. ch. 30.1-29
For Limited English Proficiency litigants and witnesses in Domestic Violence Protection
Order cases under N.D.C.C. ch. 14-07.1
For Limited English Proficiency litigants and witnesses in Disorderly Conduct Restraining
Order cases under N.D.C.C. § 12.1-31.2
For Limited English Proficiency litigants and witnesses in Annulment of Marriage cases
under N.D.C.C. ch. 14-04
For Limited English Proficiency litigants and witnesses in Divorce cases under N.D.C.C. ch.
An interpreter may be appointed, at cost to a litigant or witness, in any other court proceeding in which it is determined that an interpreter is necessary for the effective administration of justice.
Payment for interpreter services on behalf of law enforcement, defense attorneys, prosecutors or corrections agents other than court appearances is the responsibility of the agency that requested the services. Interpreter services required for evaluations, treatment, classes, or other similar services is the responsibility of the agency providing the service."
E. Who Qualifies for an Interpreter?
Generally, an individual who cannot speak English or cannot otherwise understand a communication in English qualifies for appointment of an interpreter if:
The individual is charged with a crime.
The individual child or parent is subject to juvenile court jurisdiction.
The individual is subject to a proceeding in a mental health case under N.D.C.C. Ch. 25-03.1 or sexually dangerous commitment case under 25-03.3.
The individual is the subject of a guardianship or conservatorship petition.
The individual is a petitioner or respondent in a domestic violence protection order or disorderly conduct restraining order.
The individual is a petitioner or respondent in a divorce or annulment case.
The individual is a witness in any of the above.
Additionally, the trial judge is required by N.D.C.C. § 28-33-02 to appoint an interpreter for a deaf person who is a principal party in interest, which is defined as a person named as a party or a person that would be directly affected by any action or decision in the proceeding.
Under the Americans with Disabilities Act (ADA) any deaf or hearing-impaired participant or spectator in a court proceeding shall be supplied with the necessary technical accommodations or sign interpreter at no cost to the person. See, 42 U.S.C. §§ 12131-12134; 28 C.F.R. Part 35.
F. Privileged Communication
If an interpreter is used to aid communication that is privileged by statute, Supreme Court rule or the United States or North Dakota constitution, an interpreter may be prevented from disclosing the communication by any person who has a right to claim the privilege. See e.g., N.D.C.C. § 28-33-06 (if a deaf person could not be compelled to testify about a communication, the privilege extends to the interpreter).
G. Judge and Interpreter Checklists
1. Judge's Checklist: To assist judges in managing interpreter services, the following points are offered.
Identify the need and appoint a qualified interpreter as early in the process as possible.
At the first hearing, ask the interpreter about training, credentials, skills and experience. Repeat the process if the interpreter changes.
Conduct a preparatory meeting with the interpreter prior to the hearing to allow the interpreter to clarify interpretive ground rules or conditions (i.e., extra time necessary for a deaf person to view exhibits and observe signing, function of a second interpreter, etc.)
Advise the parties that the court may, on its own motion or on the motion of a party, order that the testimony of the person for whom interpretation services are provided and the interpretation be recorded. Emphasize that the record produced by the court reporter or court recorder is, however, the official record of the proceeding.
If telephonic interpreter services are used, ensure that microphones and sound systems are functioning properly and that counsel, parties, witnesses, and interpreter are situated so that all communications can be clearly heard. It may also be necessary to inquire whether any relevant exhibits have been transmitted in advance by electronic means or otherwise, if possible, to the person providing interpreter services.
As the court event begins, advise the interpreter, the recipient of the interpreting services, witnesses and attorneys of the proper procedure to be used:
Do not refer to the recipient of interpreter services in the third person;
No inappropriate separate communication between the interpreter and the recipient of the interpreting service;
Judge is responsible for responding to requests for repetition or rephrasing and will instruct participants accordingly;
Caution participants about speed and clarity of speech.
Arrange sight lines and sound systems in the courtroom to facilitate interpretation.
At the beginning of every hearing, administer an oath or affirmation to the interpreter regarding the responsibility to make a true translation. Interpreters must be under oath for the entire proceeding to ensure a legitimate and accurate translation of what is taking place during the entire proceeding because they are interpreting for the individual even those conversations they are not directly involved in.
Observe the interpreter's practice and correct any deviations from proper standards of conduct. If problems become apparent, use a sidebar conference with attorneys and interpreter, or a recess, to address and correct.
Provide rest breaks for the interpreter or appoint multiple interpreters for lengthy proceedings.
2. Interpreter's Checklist: Just as interpreters expect understanding of and respect for their role in the proceedings, the court expects interpreters to follow certain practices.
Arrive at the designated location early and check-in with the appropriate person (judge, clerk or bailiff).
Orient yourself to the nature of the case by reviewing the file.
Review all documents or exhibits that will be translated or described during the hearing.
Meet with attorneys and their client. Explain to the attorney what is being said, and in the presence of the attorney, speak with the client to confirm the ability to communicate and to explain the neutral role of an interpreter. Identify regionalisms, slang or technical language that may be used in the proceeding.
Be prepared to interrupt proceedings if necessary to ask the judge for permission to have questions or answers repeated, use a dictionary or other aid, etc.
Be familiar with the Model Code of Professional Responsibility for Interpreters included in this handbook.
H. Scheduling a Court Interpreter
The appropriate time for the court to schedule a case involving a court interpreter is after the court has located a qualified interpreter.
A qualified court interpreter is a professional whose time should be scheduled just like expert witnesses coming before the court. As communication technologies advance it may become easier to hold court with attorneys, clients, judges and interpreters working from remote locations.
The court should seek to secure the services of an interpreter with the highest level of certification and training.
I. Qualifying a Court Interpreter
Rule 604 of the Rules of Evidence provides that "[a]n interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath and affirmation to make a true translation." The following list of questions may be used in the voir dire examination of a potential court interpreter.
Voir Dire Examination Questions
1. What is your native language? How did you learn English/the other language? How long have you been speaking it?
2. Please describe your formal schooling.
3. Do you have any formal training in interpreting? In legal or court interpreting?
4. Please describe your experience as an interpreter. Have you ever interpreted in court before? What kind of proceeding?
5. Are you certified as a court interpreter in any state or federal court? Do you have any other accreditation for interpretation or translation?
6. Have you spoken with the person who needs interpreting, or do you need a few minutes now to talk? Are you familiar with the dialect he/she speaks? Are you able to understand him/her and communicate with him/her?
7. Do you know any of the parties, witnesses, or attorneys? Are you aware of any conflict of interest that you might have in this case?
8. Describe what it means to interpret simultaneously and consecutively. Are you able to do both? Do you understand that you must interpret everything said on the record?
9. Do you need time to review any documents in this case?
10. Have you reviewed the Model Code of Professional Responsibility for Interpreters in the Judiciary? Do you understand it and agree to abide by it?
Judges, attorneys, clerks and other agencies should use certified court interpreters as their first choice for legal work, when available. Administrative Rule 50 governs court interpreter qualifications. An interpreter for a deaf or hearing-impaired person must have the appropriate certification or approval. An interpreter for a non-English speaking person must have an appropriate certification from another jurisdiction and be listed on a statewide roster, if any, maintained by that jurisdiction. Administrative Rule 50 provides an alternative method of obtaining interpreter services if an interpreter who satisfies these requirements cannot be located.
Courts may consider the following levels of certification to be sufficient for qualification purposes for interpreters for deaf or hearing-impaired people. They are presented in order of preference with the highest skill level being listed first.
Holds the Specialist Certificate Legal (SC:L) or Conditional Legal Interpreting Permit (CLIP).
Certificate of Interpretation (CI) and Certificate of Transliteration (CT), or Comprehensive Skills Certificate (CSC). (NOTE: Legal training is extremely important. These individuals should at a minimum have received some legal training).
Any certification granted by a nationally recognized testing entity.
Courts may also consider the following levels of certification to be sufficient for qualifying foreign language interpreters.
Graduates of a foreign language certification program from an accredited university or college or,
Interpreters certified by the Director of the Administrative Office of the United States Court or,
Interpreters certified by a recognized interpreter certification program in another jurisdiction and presence on a statewide roster of interpreters, if any, maintained by that jurisdiction or,
Individuals with adequate prior experience as a court interpreter or otherwise possessing the necessary expertise.
J. Paying Court Interpreters
Fiscal concerns are secondary to fundamental fairness when determining how much an interpreter will be paid.
There is little guidance by statute or rule regarding payment for interpreter services. An interpreter appointed for a deaf person under N.D.C.C. Ch. 28-33 must be compensated at a "reasonable rate". Similarly, Rule 28 of the Rules of Criminal Procedure provides that the court "may fix the reasonable compensation" for interpreter services.
North Dakota Court System Policy 522, Section III lists the instances where the court must provide interpreters at no cost and also provides:
"An interpreter may be appointed, at cost to a litigant or witness, in any other court proceeding in which it is determined that an interpreter is necessary for the effective administration of justice. Payment for interpreter services on behalf of law enforcement, defense attorneys, prosecutors or corrections agents other than court appearances is the responsibility of the agency that requested the services. Interpreter services required for evaluations, treatment, classes, or other similar services is the responsibility of the agency providing the service."
K. Obligation to Comply with ADA: Hearings for the Deaf or Hard of Hearing
The courts are obligated to comply with the Americans with Disabilities Act (ADA). Deaf or hearing-impaired persons are to be given deference in the choice of auxiliary aids that are used to achieve effective communication (28 C.F.R. 35.160). Under the ADA, the court must determine what accommodations a court user might need. This accommodation includes the need for an interpreter if a person is deaf or hearing-impaired.
Attorneys should contact the clerk of court when they represent a client who is deaf or hearing-impaired. In cases in which special skills are required, advance notice can expedite the process of locating and making arrangements for a qualified interpreter to be present. For example, in cases in which a deaf individual uses a foreign sign language, has minimal or limited communication skills, uses signs unique to a given region, ethnic or age group or is deaf-blind; it may be advisable to use a deaf interpreter in tandem with an American Sign Language (ASL) interpreter.
It is appropriate for the judge to determine and balance the need for a case to proceed with the need for and skill level of the interpreter, as long as communication can take place.
L. Suggestions for Cases Involving Deaf or Hard of Hearing People
SPEAK DIRECTLY TO THE DEAF OR HEARING-IMPAIRED PERSON.
It is important from the deaf or hearing-impaired person's point of view that the court and lawyers talk directly to the deaf or hard-of-hearing person. The deaf or hearing-impaired person can quickly sense your indifference or your discomfort if you face only the interpreter and talk only to the interpreter. When talking to a deaf or hearing-impaired person, speak directly to the person's face. Speak naturally, without shouting or distorting your normal mouth movements.
NO LANGUAGE CAN ACCOMMODATE A LITERAL WORD-FOR-WORD ENGLISH TRANSLATION. ALLOW FLEXIBILITY IN INTERPRETATION.
A deaf or hearing-impaired person may become confused by a word-for-word translation. There are both American Sign Language (ASL) and signed English commonly in use and both of these languages differ from spoken English. The interpreter should inform the deaf or hearing-impaired person's lawyer of the language and mode used by the client so that the lawyer can inform the court of any problem and the possible need to explain in more detail.
Confusion can also result when a deaf or hearing-impaired person nods "yes" to an interpreter's question but still has a quizzical look. "Yes" may not be the answer to the question, but only an indication that the person understands the question. A deaf or hearing-impaired person may even nod "yes" without completely understanding. Repeating part of a question is often the deaf or hearing-impaired person's attempt to clarify it and it does not necessarily mean confirmation or agreement. With the judge's approval there may be an occasional need to ask leading questions.
SPEAK AS YOU NORMALLY WOULD.
Speak naturally, but not too fast. Remember that names and some other words must be finger-spelled, and this takes more time than signing. Although these proceedings may take longer they are otherwise identical to other court proceedings; speak at a normal rate.
It must be realized that a deaf or hearing-impaired person can concentrate on only one person at a time. It is just as impossible for an interpreter to interpret for two people simultaneously as it would be for a court reporter to accurately take that testimony.
MAKE SURE THE DEAF OR HEARING-IMPAIRED PERSON "SEES" THE COMMUNICATION.
All deaf or hearing-impaired people rely on information they see. To be effective, communication must be visible. The court should make every attempt to facilitate a good visual contact between the deaf or hearing-impaired person, the interpreter, and other participants. The court must make sure the deaf or hearing-impaired person can watch the interpreter and then look at any visual evidence.
BE AWARE OF ENVIRONMENTAL FACTORS.
Any time there is a deaf or hearing-impaired person in court, be aware of environmental factors that may interfere with communication.
While a deaf person may or may not be affected by background noises, a great deal of background movement or changes in lighting will be distracting. A hearing-impaired person who uses a hearing aid or who has residual hearing might be seriously distracted by background noises. Minimize machinery noises or other conversations.
MATCH THE SKILLS OF THE INTERPRETER WITH THE NEEDS OF THE DEAF OR HEARING-IMPAIRED PERSON.
A qualified sign language interpreter is necessary to achieve full and effective communication with a deaf or hearing-impaired person in many situations. American Sign Language (ASL) is a visible language linguistically independent from English. Many deaf people use sign language rather than English as their primary mode of communication.
There are many variations and combinations of sign language. Even professional interpreters cannot achieve effective communication all the time for all deaf or hearing-impaired people who sign. Typically, deaf people with native use of ASL are more successful in communicating with persons who are highly visually oriented. Judges should consider the use of a deaf interpreter in combination with a hearing relay interpreter who is proficient in ASL. The use of a deaf interpreter may provide the greatest opportunity for the deaf client to have accurate linguistic and cultural access to the judicial system.
Avoid using family members or friends of deaf or hearing-impaired people as interpreters. The interpreter should be a neutral professional who facilitates communication between the deaf or hearing-impaired person and other participants in the proceedings. Professional certified interpreters follow a code of ethics requiring confidentiality and accuracy.
THE INTERPRETER SHOULD BE PRESENT UNTIL EXCUSED BY THE COURT.
PROVIDE REST PERIODS FOR INTERPRETERS.
Like court reporters, interpreters must hear everything said and must concentrate fully in order to do their job accurately. As a result, interpreters require rest periods for best performance. During lengthy proceedings of forty-five minutes or more, it may be necessary to use two interpreters. When two professional interpreters are present, usually one is actively interpreting while the other is monitoring the "on duty" interpreter. This helps to reduce fatigue and enhance accuracy.
AVOID RELIANCE UPON WRITTEN NOTES AS THE MEANS OF COMMUNICATION UNLESS REQUESTED.
At times a deaf or hearing-impaired person will use written notes to communicate or to supplement other modes of communication. Writing is not, however, always effective or appropriate. Technology is affecting this area as machine readable assistance is becoming available. Real-time court reporting may be beneficial and a number of court reporters are becoming certified in this area.
Some deaf or hearing-impaired people are highly educated; they read and write well. Others do not. It is a common misconception that deaf or hearing-impaired people compensate for their inability to hear by reading and writing. Many deaf or hearing-impaired people, especially those who lost their hearing before they learned to talk, have difficulty with written as well as spoken English. They may be more comfortable communicating in American Sign Language.
CALENDARING THE CASE WHEN AN INTERPRETER IS INVOLVED.
The interpreter is a professional. It is appropriate to view the arrangements for an interpreter as contractual in nature. It is improper to subpoena a person to act as an interpreter in order to avoid paying the interpreter appropriate compensation.
Another common misconception is that all deaf or hearing-impaired people can read lips. In fact, very few can lip-read well enough to understand speech. The court and lawyers can help by repeating the thought using different words. Also, use gestures freely. The difference between "time" and "dime" is obvious when you point to your wristwatch. Do not inhibit natural gesture.
Lip-reading can only occur when the deaf or hearing-impaired person can see the speaker. Lip-reading often supplements other modes of communication but is seldom sufficient to assure effective communication in a courtroom. Furthermore, lip-reading ability may decrease dramatically in stressful situations, like those encountered in the court environment. Persons with cochlear implants may prefer lip-reading. Some deaf people may require the use of an oral interpreter or real-time captioning. An oral interpreter faces the deaf person and silently mouths the spoken communication along with the speaker.
Early deafness interferes with English language and speech acquisition. Nevertheless, some deaf or hearing-impaired people have normal, intelligible speech. Others, however, do not speak at all or speak with unusual voice quality, inflections or modulations.
If you have difficulty understanding a deaf or hearing-impaired person who wishes to speak, listen without interruption until you become accustomed to the voice patterns and rhythm.
REAL TIME REPORTING OR REAL TIME CAPTIONING
Real Time Captioning (RTC) is an emerging accommodation choice that parallels the work of Court Reporters. It involves the use of individual(s) trained in real time reporting, steno-machine, real time software and lap top computer as well as materials on a situational basis (i.e., projector). A trained captioner uses a steno machine that sends steno-entries to a real-time software that translates steno-entries into readable text on the lap top computer instantaneously at a near verbatim rate.
DO NOT IGNORE THE NEEDS OF THOSE INDIVIDUALS WHO ARE HEARING-IMPAIRED BUT WHO ARE NOT DEAF.
One in a hundred Americans are completely deaf but one in sixteen has a significant hearing loss. Environmental noise can interfere with the performance of hearing aids. There are devices available that can reduce levels of environmental noise. The court should direct participants to speak louder. The court should consider having the deaf or hearing-impaired person repeat the question asked, before answering. It may be appropriate to rearrange the courtroom to facilitate communication for all participants.
M. Suggestions for Cases Involving Persons who Speak a Foreign Language
Interpreters for foreign languages should expect to be qualified as experts. Prior to any scheduled hearing attorneys should contact the clerk of court when they represent a client who speaks a foreign language. In cases when a rare, hard to accommodate language skill is required, additional advance notice can expedite the process of locating and making arrangements for a qualified interpreter to be present.
Clerks of court should work in conjunction with their trial court administrators to maintain a comprehensive list of qualified foreign language interpreters in their administrative unit. Once alerted to the possible need for an interpreter, do not simply rely on an attorney's representation regarding whether or not an interpreter is needed.
VOIR DIRE THE DEFENDANT/WITNESS - DO NOT ASK IF THE PERSON SPEAKS ENGLISH. DO NOT ASK LEADING QUESTIONS; ASK NO QUESTIONS THAT CALL FOR YES/NO ANSWERS.
Consider the following questions. Explain that you are asking these questions to evaluate the need for an interpreter.
Please state your name and address.
Please tell us your birthday, your age, and how many children are in your family.
Please tell us whether you are employed, and if you are employed, describe the kind of work that you do.
Describe your education. What language do you read and write?
Describe the courtroom.
Describe with whom and how frequently you speak English.
Tell me a little about how comfortable you feel speaking English.
EVALUATE THE NEED FOR AN INTERPRETER IN LIGHT OF THE PROCEEDING.
It is entirely appropriate to evaluate the need for an interpreter, and the language skills of the interpreter, in light of the complexity of the proceedings. Rudimentary language skills may suffice when simply scheduling a hearing, while the most sophisticated skills are required for persons interpreting live testimony.
REMEMBER, IN ORDER FOR NON-ENGLISH SPEAKING DEFENDANTS TO TESTIFY IN THEIR OWN DEFENSE THEY MUST BE ABLE TO:
accurately and completely describe persons, places, situations, events;
tell "what happened" over time;
request clarifications when questions are vague or misleading.
The judge and attorneys should speak directly to the person (not to the interpreter). Interpretation should be literal; or as close to verbatim as makes sense (i.e. slang or idioms).
INTERPRETATION SHOULD BE IN THE FIRST PERSON.
Q. When the accident happened were you awake?
Q. When the accident happened were you awake?
A. The witness says he was awake.
Q. Ask him what he saw at that time.
Q. What did you see at the time?
A. He saw the other car coming fast.
A. I saw the other car coming fast.
The judge should stop third person renditions and instruct the participants to use first person renditions.
N. Other Points to Consider
Court interpreting is conditioned by the formal environment of the courtroom and the adversary proceedings. Be sensitive to this. The interpreter acts as his or her own sound engineer. Visibility helps to foster effective communication in this type of environment. As with interpretation for the deaf or hearing-impaired, the court should allow flexibility in physical arrangements of furniture and people to enhance communication.
Qualified interpreters are hard to find. Use your administrative unit's Interpreter Resource List (contact your trial court administrator), if available.
It may be necessary to adjourn a hearing in order to obtain the services of an interpreter. Do not use family members or friends of the defendant or witness as an interpreter. The interpreter should be a neutral professional, skilled in the techniques of interpretation.
Court interpreters need breaks or rest periods in order to function effectively.
O. Oath or Affirmation for Interpreters
"Do you solemnly swear to justly, truly, and impartially act as an interpreter and make a true translation to the best of your ability? So help you God". Rule 6.10(a)(4), Rules of Court.
"Do you solemnly affirm to justly, truly, and impartially act as an interpreter and make a true translation to the best of your ability under the pains and penalties of perjury." Rule 6.10(b), Rules of Court.