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Speakers

Bill Eggington, Brigham Young University

Dr. William G. Eggington, originally from Australia, is an applied sociolinguist with research interests in language planning and policy, intercultural rhetoric and forensic linguistics. His focus on the sociolinguistics of minority language speakers led to an interest in forensic linguistics. As such, he has consulted and testified as an expert witness in numerous criminal and civil legal cases involving forensic linguistics with an emphasis on minority language issues such as limited English speaker’s comprehension of legal rights and interrogation language, hate crime determination, trade mark dilution, contract language disputes, and authorial attribution. He is currently Ludwig, Weber, Siebach Humanities Professor, BYU College of Humanities. During the 2013-2014 academic year, he was a visiting scholar at Kyung Hee University, Global Campus, South Korea.

Dr. Eggington has written or co-edited six books and has produced numerous journal articles and book chapters in volumes published by Cambridge, Multilingual Matters, Addison Wesley, Holt Rinehart, Macmillan, H. Buske, Harvard Latino Law Review and various national and international university and professional association presses. From 2003 to 2006, he served as a member of the board of directors of TESOL (Teachers of English to Speakers of Other Languages) and chaired the TESOL 2005 conference in San Antonio, Texas with approximately 8,000 participants. Prior to coming to BYU in 1989, he taught applied linguistics at the Northern Territory University in Australia. He received his MA and PhD in Linguistics from the University of Southern California.

Title:
Language proficiency and citizens’ rights

Abstract:

We are living in a very recognizable age of proximity where, to a degree never experienced previously, people from vastly different language and cultural backgrounds are interacting proximal to each other.  Consequently, high stakes social institutions that demand advanced, often specialized, English language proficiency such as those required by society's educational and legal domains are struggling to provide citizen’s rights, equitable services and protections as demanded not only by our social values but also, in the U.S., by the 14th amendment. This paper reports on a range of successes and failures encountered by America's legal system with respect to its interactions with non-native English speakers including  challenges associated with measuring the English language proficiency of defendants and witnesses as well as the inability to deal with more subtle inter-language strategies such as feigned comprehension and intercultural pragmatic failure.  Many of the issues discussed come from actual legal cases where the presenter has served as a forensic linguist.  The paper will conclude with recommendations that may lead to our legal institutions being better able to meet the demands of our multilingual society in this age of proximity.

Elizabeth Hepford, Temple University

Elizabeth Hepford graduated with her doctorate in Applied Linguistics from Temple University in Philadelphia, PA in 2017. Her dissertation research focused on the development of complexity, accuracy, and fluency under the theoretical framework of Complex Dynamic Systems. Her other research interests include forensic linguistics and language commodification. She received her Masters in TESOL from Arizona State University where her focus was phonology. She is currently teaching in the TESOL Master’s Program and the Intensive English Language Program at Temple University.

From 2009 to 2011, Elizabeth was an English Language Fellow in Albania where she taught English as a Foreign Language at Luigi Gurakuqi University and conducted TESOL training for the US Embassy. From 2006-2009, she taught English as a Foreign Language and TESOL methods at Universidad de las Américas and Tecnológico de Monterrey in Puebla, Mexico. She began her teaching and linguistics career at as a Peace Corps Volunteer in Arseniev, Russia.  

Title:
Everyone has the right to understand: ESL instruction techniques for assisting English Language Learners in understanding the Miranda Warnings

Abstract:
The Miranda Warnings are given to suspects of a crime when taken into custody to ensure that they understand their fundamental legal rights, including the rights to remain silent and to have an attorney present during questioning. However, research shows that due to limited English proficiency and cultural differences, non-native English speakers are particularly vulnerable to misunderstandings and police questioning tactics (Pavlenko, 2008; The Communication Rights Group, 2016). ESL instructors can help ‘level the playing field’ by including information about the Bill of Rights, the U.S. legal system, and the Miranda Rights in their lessons. This presentation points out three areas in which ESL teachers can focus their efforts: the U.S. legal context, legal vocabulary, and sentence complexity. Techniques and materials based on scholarly research and teaching experience will be proposed that address each of these issues. In addition, suggestions will be offered on how to prepare non-native speakers of English for the pressures of high stakes legal situations such as police questioning.

Speaking with Aneta Pavlenko and Scott Jarvis.

Title:
How non-native speakers of English understand—and misunderstand—their Miranda rights

Abstract:
The purpose of the Miranda rights is to ensure that suspects know their fundamental rights under the law, including the right not to incriminate themselves. Research shows that even native speakers of English do not always understand their rights (Rogers et al., 2010, 2011) and are vulnerable to trivialization tactics used by the police (Leo, 2008; Scherr & Madon, 2013). The problems are even greater among speakers with limited proficiency in English (Bowen, 2017; Eades, 2010; Pavlenko, 2008; Pavlenko et al., 2016) but until now there have been no empirical studies to examine linguistic challenges faced by this population.

The purpose of the present study was to compare understanding of the Miranda rights by L1 English speakers (n = 50) with that of L2 English speakers: L1 Arabic (n = 50), L1 Chinese (n = 51), and other L1s (n = 40). Using the instruments developed and validated by Rogers and colleagues (2010), we examined participants’ Miranda vocabulary comprehension, listening comprehension, and comprehension of individual rights and the function of the Miranda waiver.

The findings revealed that even advanced-level speakers do not fully understand the Miranda rights. Predictably, their performance was affected by the L1 background, level of proficiency, sentence length and complexity, word frequency and type (everyday vs legal vocabulary). Unexpectedly, the participants did not realize that they did not understand – drawing on their partial knowledge of homonyms (e.g., right-write, waive-wave), polysemous words (e.g., advice, right, exercise) and false and partial cognates (e.g., appointment vs Spanish apuntar) they constructed alternative meanings that created an ‘illusion of understanding’ (e.g., a lawyer will be appointed to represent you > you have to make an appointment with a lawyer in prison). We will discuss the implications of these findings for communication of rights in police interviews.

Scott Jarvis

Scott Jarvis was born in Arizona and grew up in Missouri. He earned an BA in Linguistics at Brigham Young University in 1991, an MA in Applied Linguistics at Indiana University in 1993, and a PhD in Linguistics at Indiana University in 1997. His PhD concentration was Second Language Acquisition, and his PhD minor was Semiotics.

Scott was hired by the Department of Linguistics at Ohio University in 1998 and worked there until 2017, receiving promotions to the rank of Associate Professor in 2003 and Professor in 2013. He also served as Department Chair for five years, from 2004 until 2009. From the middle of 2009 until the middle of 2010, he spent his sabbatical in the Centre for Applied Language Studies at the University of Jyväskylä, Finland. He began working in the Department of Linguistics at the University of Utah in 2017, where he holds the rank of Professor and is currently serving as Department Chair.

His research concentrations include crosslinguistic influence and lexical diversity. In the domain of crosslinguistic influence, he has developed frameworks for exploring conceptual transfer and confirming crosslinguistic influence in cases where it is difficult to detect or is confounded by competing variables. In the domain of lexical diversity, he has concentrated on developing an adequate, multidimensional construct definition of this phenomenon and an accompanying set of measures that account for how lexical diversity is perceived and how it contributes to the quality of both spoken and written language. He has published articles in several of the top journals in Second Language Acquisition and Applied Linguistics, has co-edited three books, and has co-authored a book with Aneta Pavlenko titled Crosslingusitic Influence in Language and Cognition. He is currently conducting research with Aneta Pavlenko and Beth Hepford on the relationship between language proficiency and non-native speakers’ understanding of the Miranda warning.

Scott’s professional service has given him the opportunity to serve in a number of positions, including but not limited to the role of Chair of the Research Interest Section for TESOL (2001-2002), Associate Journal Editor for Language Learning (2007-2011), Board Member and Associate Executive Director for Language Learning (2011-2015), Executive Committee Member for the American Association for Applied Linguistics (2014-2016), and Editorial Board Member for various journals. He is currently the Executive Director for Language Learning and the Chair of the Resolutions Committee for the American Association for Applied Linguistics.

Speaking with Aneta Pavlenko and Elizabeth Hepford

Title:
How non-native speakers of English understand—and misunderstand—their Miranda rights

Abstract:
The purpose of the Miranda rights is to ensure that suspects know their fundamental rights under the law, including the right not to incriminate themselves. Research shows that even native speakers of English do not always understand their rights (Rogers et al., 2010, 2011) and are vulnerable to trivialization tactics used by the police (Leo, 2008; Scherr & Madon, 2013). The problems are even greater among speakers with limited proficiency in English (Bowen, 2017; Eades, 2010; Pavlenko, 2008; Pavlenko et al., 2016) but until now there have been no empirical studies to examine linguistic challenges faced by this population.

The purpose of the present study was to compare understanding of the Miranda rights by L1 English speakers (n = 50) with that of L2 English speakers: L1 Arabic (n = 50), L1 Chinese (n = 51), and other L1s (n = 40). Using the instruments developed and validated by Rogers and colleagues (2010), we examined participants’ Miranda vocabulary comprehension, listening comprehension, and comprehension of individual rights and the function of the Miranda waiver.

The findings revealed that even advanced-level speakers do not fully understand the Miranda rights. Predictably, their performance was affected by the L1 background, level of proficiency, sentence length and complexity, word frequency and type (everyday vs legal vocabulary). Unexpectedly, the participants did not realize that they did not understand – drawing on their partial knowledge of homonyms (e.g., right-write, waive-wave), polysemous words (e.g., advice, right, exercise) and false and partial cognates (e.g., appointment vs Spanish apuntar) they constructed alternative meanings that created an ‘illusion of understanding’ (e.g., a lawyer will be appointed to represent you > you have to make an appointment with a lawyer in prison). We will discuss the implications of these findings for communication of rights in police interviews.

Robert Leonard, Hofstra University

Robert A. Leonard is Professor of Linguistics and Director of the Hofstra Graduate Program in Linguistics: Forensic Linguistics, as well as of the Forensic Linguistics Innocence Project, a joint venture with Hofstra Law School, and the Institute for Forensic Linguistics, Threat Assessment and Strategic Analysis. Trained at Columbia by functional semanticist William Diver and the father of variationist sociolinguistics William Labov, Leonard received a Fulbright Fellowship to research the spoken Swahili dialects of northern Kenya, and wound up researching and working for a total of eight years in Africa, and in Southeast Asia. Upon his return, he eventually partnered with the founder of forensic linguistics in the US, Georgetown Distinguished Research Professor, Emeritus, Roger Shuy, and has since worked on hundreds and hundreds of cases. He has also served as Court Interpreter for the State Court System of New Jersey as their Swahili interpreter. He has helped investigate, analyze, write reports and affidavits, and testify for the defense in numerous cases in which the English proficiency of the accused was a crucial issue.

Leonard has consulted to the FBI, and to police, counter-terrorism, and intelligence agencies throughout the US, Canada, the United Kingdom, and Europe, working on cases and training agents in the use of forensic linguistics in law enforcement, threat assessment, and counter-terrorism.  Leonard was recruited by the FBI’s BAU—the Behavioral Analysis Unit—to help train their agents in forensic linguistic techniques, and advise on their Communicated Threat Assessment Database (CTAD).  Other clients have included Apple, Facebook, the NYPD Hate Crimes Task Force and the Prime Minister of Canada. The New Yorker calls Leonard "[O]ne of the foremost language detectives in the country." Wikipedia’s bio of him is here.

Leonard’s testimony has been pivotal in investigating and prosecuting cases such as the JonBenet Ramsey murder, Apple defending its trademarks against Microsoft and Amazon, a Joint Terrorism Task Force investigating murder threats against a sitting U.S. congressman, aiding the NY State Police Intelligence Division in investigating documents threatening Governor Cuomo and his young daughter, and the 2011 conviction of Christopher Coleman for strangling his wife and children. Re another case, the New York Times wrote of Leonard, "His consultation on the murder of Charlene Hummert, a 48-year-old Pennsylvania woman who was strangled in 2004, helped put her killer in prison. Mr. Leonard determined, through [analysis of] two letters of confession by a supposed stalker and a self-described serial killer, that the actual author was Ms. Hummert's spouse." See, regarding this case, the Investigation Discovery short clip or the full Forensic Files episode, and about the catfishing “Facebook Murders,” on which he worked for over a year, his cameo in the 2016 TV movie ”Too Pretty to Live.” 

Leonard and his Hofstra Forensic Linguistic Innocence Project interns have worked on many exoneration cases, reanalyzing language evidence such as confessions and wiretaps that were used to convict defendants of murder and other serious crimes. 

Leonard’s research focuses not only on forensic language analysis but also other semantic and sociolinguistic meaning systems such as social identity, food behavior, and architectural and public space. 

Title:
“Forensic linguistics” in the cause of justice: The Forensic Linguistics Capital Case Innocence Project

Abstract:
“Forensic linguistics” is the application of data-driven, fact-based scientific linguistic scholarship to analyses of legal language data including letters, emails, notes, texts, blog posts, trademarks, patents, contracts, statutes, jury instructions, and, importantly, testimony, police interviews, mirandizing, and interrogations. Forensic linguistic testimony has been admitted in cases of murder, threats, forgery, fraud, corporate and international espionage, contracts, trademarks, false confession, perjury, solicitation to murder, bribery, and more. This talk will address the Hofstra Innocence Project’s analysis of the purported confession of Anwaun Cubie, convicted of murder, and our conclusion that it in no way matched his linguistic patterns, and cases of testimony, mirandizing, and interrogation, in which the defendants’ linguistic abilities were very much at issue.

Aneta Pavlenko, Center for Multilingualism, University of Oslo

Dr. Aneta Pavlenko grew up in Kiev, Ukraine and left the USSR just before it collapsed (a coincidence, not a consequence). After a short stay in a refugee settlement in Torvaianica, Italy, she came to the United States. While in graduate school, she supported herself and her son by working as a case worker and medical and court interpreter for the Refugee Assistance Program in Ithaca, New York. She wrote her dissertation on eyewitness memory in bilinguals and received a Ph.D. in General Linguistics at Cornell University in 1997. Between 1998 and 2016 she was a Professor of Applied Linguistics at Temple University, Philadelphia and in 2014-2015 she served as President of the American Association for Applied Linguistics. Dr. Pavlenko’s research examines the relationship between multilingualism, cognition, and emotions, including in forensic contexts. She has lectured widely in North America, Europe and Asia and has authored more than a hundred articles and ten books, the most recent of which is Thebilingual mind and what it tells us about language and thought (Cambridge University Press, 2014). She is the winner of the 2006 BAAL Book of the Year award and the 2009 TESOL Award for Distinguished Research. She has testified in court as an expert in forensic linguistics and co-authored the Guidelines for communicating rights to non-native speakers of English.

Speaking with Scott Jarvis, and Elizabeth Hepford.

Title:
How non-native speakers of English understand—and misunderstand—their Miranda rights

Abstract:
The purpose of the Miranda rights is to ensure that suspects know their fundamental rights under the law, including the right not to incriminate themselves. Research shows that even native speakers of English do not always understand their rights (Rogers et al., 2010, 2011) and are vulnerable to trivialization tactics used by the police (Leo, 2008; Scherr & Madon, 2013). The problems are even greater among speakers with limited proficiency in English (Bowen, 2017; Eades, 2010; Pavlenko, 2008; Pavlenko et al., 2016) but until now there have been no empirical studies to examine linguistic challenges faced by this population.

The purpose of the present study was to compare understanding of the Miranda rights by L1 English speakers (n = 50) with that of L2 English speakers: L1 Arabic (n = 50), L1 Chinese (n = 51), and other L1s (n = 40). Using the instruments developed and validated by Rogers and colleagues (2010), we examined participants’ Miranda vocabulary comprehension, listening comprehension, and comprehension of individual rights and the function of the Miranda waiver.

The findings revealed that even advanced-level speakers do not fully understand the Miranda rights. Predictably, their performance was affected by the L1 background, level of proficiency, sentence length and complexity, word frequency and type (everyday vs legal vocabulary). Unexpectedly, the participants did not realize that they did not understand – drawing on their partial knowledge of homonyms (e.g., right-write, waive-wave), polysemous words (e.g., advice, right, exercise) and false and partial cognates (e.g., appointment vs Spanish apuntar) they constructed alternative meanings that created an ‘illusion of understanding’ (e.g., a lawyer will be appointed to represent you > you have to make an appointment with a lawyer in prison). We will discuss the implications of these findings for communication of rights in police interviews.

Margaret van Naerssen, Immaculata University

Ph.D. Applied Linguistics/ Language Acquisition, University of Southern California, is now an Independent Consultant in Applied Linguistics. She has taught in and administered teacher training programs in ESL/EFL/Bilingual Studies. She has also coordinated a UCLA/ Chinese Academy of Sciences English for Science and Technology Center in Beijing. She does occasional assignments with US Department of State and other international organizations. Since 1997, as a consultant/ expert, she has applied linguistics in forensic contexts (federal, state, local) in cases involving murder, drugs, rape, money laundering, robbery, kidnapping, fraud, and DUI. Most have involved non-native speakers of English.

Title:
Faking or not faking a low language proficiency?

Abstract:
In many legal cases, claims by non-native speakers (NNSs) about their problems in understanding/speaking are probably truthful.  However, some may try faking a lower than truthful second language (L2) proficiency level for a perceived legal advantage. This issue can impact various parts of a case, including the communication of Miranda rights. Thus, in any case involving a NNS it is important that a language assessment/linguistics expert be prepared for both sides of the issue. Almost invariably the prosecution will challenge with, “How do you know the defendant wasn’t faking a lower language proficiency?”

In police contexts, such claims have also been referred to as “malingering” (borrowing from psychology).  Eggington, van Naerssen and several others have informally discussed the issue of terms and specific strategies for examining the possibility of “faking.” In the presenter’s opinion, “intentional underperformance” most accurately distinguishes use from “underperformance,” which could also be the effects of stressful conditions and exhaustion. 

Those with some linguistic awareness might have formed opinions based on their experience working with non-native speakers. However, van Naerssen argues that to maintain courtroom credibility for linguistics (including language assessment), analysis strategies that have some basis in research are important in breaking down misbeliefs about language use and intentional misuse. 

Four strategies are briefly described: 1) analysis of multiple language samples for inconsistencies; 2) retelling of own story; 3) an alternating language retell of a story in L1 and L2; and 4) and being able to spot errors in one’s story. The likely strength of findings can be examined in relation to other language use in the legal case and with appropriate language proficiency assessment.

However, the best professional efforts by qualified linguists still may not overcome judges’ or juries’ a) misunderstanding of language development and language use by NNSs; b) personal biases toward a particular population; or c) misbelief that controlled experiments can be used to determine “faking.” Any of these might cause fact-finders to assume the intention of “faking.”

Melissa Wallace, University of Texas at San Antonio

Melissa Wallace received her Ph.D. in translation and interpreting studies from the Universidad de Alicante, Spain. A certified court interpreter and certified healthcare interpreter, Wallace is currently serving a 5-year term on the Licensed Court Interpreter Advisory Board of the Judicial Branch Certification Commission for the Supreme Court of Texas. She has been an active member of the Home for Trainers Webinars Work Group at the National Council on Interpreting in Health Care since 2012, and is a board member of the Society for the Study of Translation and Interpretation (SSTI), the non-profit educational and research foundation of the National Association of Judicial Interpreters and Translators. Her research focuses on indicators of aptitude on court interpreter certification exams, accreditation exam models, and interpreter and translator training. Wallace carried out research on court interpreting certification models in Finland in 2016 as the Fulbright-University of Tampere Scholar. She is an Assistant Professor of TI Studies at the University of Texas at San Antonio where she directs the graduate certificate program in translation and interpreting studies.

Title:
Beyond Certification: Gauging the Quality of Certified Interpreters in US Courtrooms

Abstract:
Identifying and certifying competent court interpreters represents one of the cornerstones of due process in the US judicial system, as to understand (and to be understood by) the courts is indispensable to full and active participation in one’s own defense.

Importance notwithstanding, barriers to the provision of quality language services in the justice system are as varied as they are ubiquitous and well-documented. These can range from a lack of compliance with existing language access legislation (Wallace 2015), difficulty in training, recruiting and credentialing qualified practitioners, the use of ad hoc or inadequately tested interpreters (Giambruno 2016), a reluctance to pay for language services, outsourcing, and deficient accreditation schemes (Ozolins 2016). Some systemic challenges are directly specific to administering interpreting tests, including assembling a team of subject matter experts to design the constructs of the exams, building in protocols to assure rating consistency, or assuring equitable testing for candidates in all language combinations tested (see Skaaden & Wadensjö, 2014). Admittedly, other barriers to quality exist that fall fully outside the realm of education or testing, such as anti-immigrant sentiment or a lack of political will and administrative action (Giambruno 2016).

Certification as a court interpreter by the National Center for State Courts guarantees a minimal threshold of interpreter competence. Nonetheless, what level of quality are non-English participants in the courtroom receiving from their certified interpreters? This presentation will critically examine limitations to the currently used performance-based model of accrediting court interpreters in the United States by identifying what is and is not currently assessed on certification exams. The Consortium exams, as they are known, focus almost exclusively on linguistic aspects of examinees’ renditions, intentionally excluding pragmatic and extra-linguistic factors as well as ethical decision-making. In addition to speaking and listening skills not currently assessed, we shall examine the intellectual and dispositional traits as well as the communicative, interpersonal, and cross-cultural competencies that are considered essential to interpreter competence but which are not currently accounted for. This presentation will be of particular interest to judges, attorneys and language access program managers who recognize limitations in current accreditation schemes, providing tools by which to gauge interpreting competence in the courtroom.

References

Giambruno, C. (2016). Quality assessment and political will. Language and Law / Linguagem E Direito,3(2), 116-134.

Ozolins, U. (2016). The long road to effective court interpreting. Language and the Law / Linguagem e Direito,3(2), 98-115.

Skaaden, H., & Wadensjö, C. (2014). Some considerations on the testing of interpreting skills. In C. Giambruno (Ed.), Assessing legal interpreter quality through testing and certification: The QUALITAS project (pp. 17-26). Sant Vicent del Raspeig, Spain: Publicaciones de la Universidad de Alicante.

Wallace, M. (2015). A further call to action: Training as a policy issue in court interpreting. The Interpreter and Translator Trainer,9(2), 173-187. doi:10.1080/1750399x.2015.1051769

Keith Walters, Portland State University

Keith Walters is currently professor in the Department of Applied Linguistics at Portland State University in Portland, OR. Prior to coming to PSU in 2006, he taught in the Linguistics Department at the University of Texas at Austin (1991-2006) and in the English Department at the Ohio State University (1988-1991). This past summer, Ed Finegan and he co-taught an introductory-level course in forensic linguistics at the LSA Summer Institute in Lexington, KY. Walters has served as an expert in cases involving “Speak English Only” rules in the workplace, the assessment of a defendant’s likely ability to have understood his Miranda Rights, libel, authorship attribution, medical malpractice, and the question of whether a series of text messages in Arabic should be seen as threats.

Much of Walters’ research focuses on issues of language and identity in the Arab world, particularly Tunisia, where he served as a Peace Corps volunteer teaching English as a foreign language. He has also taught English in Guinea and trained teachers in both those countries, Morocco, the West Bank, Vietnam, and the US.  He is co-author of two widely used freshman composition textbooks.

Title:
Speak English Only Rules and Other Language Restrictive Policies in the Workplace: The View from Sociolinguistics

Abstract:
In the US, it is legally permissible under certain conditions for an employer to require employees to speak only English or some other language in the workplace. Such restrictive policies on language use are discussed as part of employer guidelines published by the Equal Employment Opportunity Commission (the EEOC), the federal agency created by the Civil Rights Act of 1964 to ensure workplaces free from discrimination based on race, ethnicity, or national origin, among other criteria.

These guidelines clearly presume that under certain delimited circumstances, employers may have a justifiable need to restrict the language(s) used in a workplace. The guidelines also make clear, however, that such rules are to be highly scrutinized because they easily become pretexts for discrimination. As the most recent guidelines (2016) noted, “Restrictive language policies implicate national origin because an individual's primary language is closely tied to his or her cultural and ethnic identity.” A common way for legal theorists to frame the relevant set of legal issues involved is “balancing business needs and employee rights,” the subtitle of Piatt’s (1993) book.

Drawing on my experience as expert witness in three such cases, two involving the EEOC as named plaintiff, and the existing research on these rules, this presentation outlines the legal issues that have emerged in such cases, considering them from the perspective of sociolinguistic research on bi- and multilingualism.

References

Equal Employment Opportunity Commission. (2016). EEOC enforcement guidance on national origin discrimination. https://www.eeoc.gov/laws/guidance/national-origin-guidance.cfm

Piatt, Bill. (1993). Language on the job: Balancing business needs and employee rights. Albuquerque, NM: University of New Mexico press.

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Last Updated: 4/18/18