Civil Litigation Legal Topics Litigation Strategy

Lost in Translation

Court interpreters are used to translate testimony given by a witness who does not speak English. In California, jurors must rely solely on the translation provided by the interpreter. CACI 108. That sounds reasonable, but what happens when a juror understands the language being spoken and finds that the court interpreter is not translating everything said or is not translating accurately? Does that juror have to ignore what he or she heard from the witness and consider only what the interpreter said? The answer is yes. The juror must rely solely on even a flawed translation provided by the interpreter.

California law requires that translators take an oath to make a true translation (Evid C §751(a), (c)) and “interpret and report to the court every statement made by the witness.” People v Wong Ah Bang (1884) 65 C 305, 4 P 19.  In reality, not all translators follow the law — through incompetence or inadvertence — but the law requires jurors to rely on even a faulty translation. This rule is based on the well-settled requirement that jurors base their decisions only on facts and evidence in the case.

I was recently in a jury pool in which one of the prospective jurors told the judge that she spoke Spanish and was once on a jury in which a Spanish translator failed to fully translate witness testimony. She said that she found it impossible to ignore the untranslated testimony. The court admonished her that she was legally required to rely solely on the translator’s version of the testimony, and that she would be called on to do so if chosen to serve as a juror in the present case. After explaining that she could not do this, she was quickly excused from the panel.

Jurors may be stuck with a faulty translation, but attorneys can take the following steps to help ensure an accurate and complete translation and, if necessary, to respond to a faulty one:

  • If another party is providing the translator, and you are not familiar with the foreign language, consider engaging a translator of your own to verify the accuracy of the translation.
  • Discredit the accuracy of the translation through cross-examination or by independent proof. See People v Walker (1924) 69 CA 475, 231 P 572.
  • Object to the accuracy of the translation by asking permission to approach the bench to discuss the problem. Cal Rules of Ct, Standards of J Admin 2.11(b)(2).

Have you encountered issues with court interpreters? Do you have any more suggestions for dealing with this situation?

For more on court interpreters generally, go to California Trial Practice: Civil Procedure During Trial §§11.33-11.43 (3d ed Cal CEB 1995).

© The Regents of the University of California, 2010. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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