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      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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Not surprisingly, international disputes in the U.S. courts often involve testimony by foreign witnesses who may need the assistance of an interpreter to translate counsel’s questions and the witness’s answers. Some witnesses may need an interpreter for the entirety of their testimony. Others may need interpreters to assist them on an as needed basis. In this section we review the applicable rules and tactical questions that arise with the use of interpreters at trial.

  1. Use of an Interpreter at Trial
    1. While they are often used interchangeably, the terms “translator” and “interpreter” are not the same. “[T]ranslation deals with the written word … [while] interpretation … allows two or more persons who do not speak the same language to communicate orally. Interpreters listen to a source language speaker, process the information, and convey it in a target language to the listener(s).” Elena M. DeJongh, An Introduction to Court Interpreting: Theory and Practice, 35-36 (1992); Debra L. Hovland, Errors in Interpretation: Why Plain Error is Not Plain, 11 Law & Ineq., 473, 474 n.3 (1993). The interpreter “is there with both speaker and listener . . . . He participates in a dialogue, his words are aimed at a listener whom he addresses directly and in whom he seeks to elicit a reaction . . .” Id., See also R. Duenas Gonzalez, V. Vasquez, H. Mikkelson, Fundamentals of Court Interpretation, Theory Policy and Practice at 295 (1991). A translators is a writer who has time to craft the words of the translation, whereas an interpreter must almost instantaneously arrive at an oral translation, while at the same time searching for further input.
    2. Rules of procedure applicable in both civil and criminal actions provide that the court may appoint an interpreter of its own selection and may fix reasonable compensation. Interpreters have generally been required where a witness does not speak English well enough to testify fully and where the criminal defendant does not speak English well enough to communicate with counsel and understand the proceedings.
    3. In a civil case, courts give paramount importance to the need for the jury to be able to effectively hear and understand the testimony and the need for the court reporter to make a complete and accurate record.
    4. The Court Interpreters Act directs the Director of the Administrative Office of the United States Courts to establish the use of interpreters for those who speak only or primarily a foreign language. It provides for certifying the qualifications of court interpreters and making them available for the trial of cases. (28 U.S.C.A. § 1827.)
    5. The Court Interpreters Act is triggered if the Court determines either sua sponte, or on the motion of a party, that a witness who may present testimony speaks only or primarily a language other than English.
    6. When a trial court is put on notice that there may be some significant language difficulty, the court should determine whether an interpreter is needed. The trial court has wide discretion in making that decision. See Perovich v. United States, 205 U.S. 86, 91 (1907). One way or the other, however, the record must reflect a determination, based on something more than the individual's say-so, that he has the requisite translating ability. United States v. Bailon-Santana, 429 F.3d 1258 (9th Cir. 2005)
    7. In a criminal case, as long as the defendant's ability to understand the proceedings and communicate with counsel is unimpaired, the appropriate use of interpreters in the courtroom is a matter within the discretion of the district court. U.S. v. Lim, 794 F.2d 469 (9th Cir.), cert. denied, 479 U.S. 937 (1986).
    8. Except in unusual circumstances, an interpreter is no more than a language conduit and the translation does not create an additional level of hearsay. U.S. v. Koskerides, 877 F.2d 1129, 1134-35 (2d Cir. 1989).
    9. The Court Interpreters Act does not require separate interpreters for each defendant in a multi-defendant case. U.S. v. Yee Soon Shin, 953 F.2d 559 (9th Cir. 1992), cert. denied, 508 U.S. 961 (1993).
    10. An interpreter for a criminal defendant is also required to interpret everything said in the courtroom, whether by a witness, attorney, or the court.
    11. When an interpreter is appointed, the interpreter is to be administered an oath or affirmation under FRE 604. The oath or affirmation of the interpreter is to make a “true translation” which requires that the interpreter communicate exactly what the witness is expressing in his testimony.
    12. FRE 604 specifically provides that the interpreter must meet the qualifications for an expert witness contained in FRE 702 which requires in the case of an interpreter that by reason of knowledge, skill, experience, training, or education, the interpreter is capable of providing a true translation. Before an interpreter is allowed to interpret, then, the Court may first have to make or permit a preliminary inquiry into the interpreter’s qualifications to serve. EEOC v. Harris Farms, Inc., 2005 U.S. Dist. LEXIS 37399 (E.D. Cal. 2005).
    13. There is no requirement that all the testimony of the witness be given through the interpreter. Courts have approved use of an interpreter to translate the proceedings for the witness or on as needed basis. See United States v. Frank, 494 F.2d 145 (2d Cir.), cert. denied, 419 U.S. 828 (1974) (trial judge allowed witness direct examination to be conducted almost entirely in English and permitted witness to resort to interpreter’s assistance as needed).
    14. The mode of eliciting testimony through an interpreter is a matter within the discretion of the trial judge. Generally, counsel should not address questions to the interpreter, but to the witness. Questions are then to be translated by the interpreter without any additional remarks. The interpreter is required to repeat the witness’s answers literally, in the first person, without any remarks. The role of an interpreter is to translate proceedings into and out of English, retaining the original meaning as nearly as possible. The interpreter is not permitted to edit or inject personal judgments or advice. United States v. Diaz Berrios, 441 F.2d 1125 (2d Cir. 1971); Negron v. New York, 434 F.2d 386 (2d Cir. 1970).
      1. As one handbook on court interpretation observes: “Interpreters should not try to lower the register of question down to the witness’s level, nor should they intervene and say that they do not think the question is understandable to the witness. If the witness does not understand the question, the person will say so; it is not the interpreter’s job to speak up for him or her. It is important to remember, when interpreting a witnesses’ testimony before a jury, that the jury will draw certain conclusions regarding the witness’s sophistication and intelligence, based on the person’s word choice, style, tone, and so forth. The interpreter should make sure the jurors have as much information in that regard as a native speaker …would have in order to judge the witness’s credibility." Fundamentals of Court Interpretation at 476-477. 
        1. If a witnesses uses foul language or say something that might be damaging to the case, the interpreter should not edit out the offending terms and must interpret exactly what is heard, conserving the original meaning. Section 18.1a., Paragraph (8) of The Judicial Council of California (1979), clearly states: “All words, including slang, vulgarism, and epithets, should be interpreted to convey the intended meaning.”
        2. Witnesses may make false starts or revise answers. The witness's self-corrections must be included in the translations, so that the fact finder can draw conclusions from the witness’s certainty, confusion. The interpreter should never correct any errors made by a speaker, but must translate exactly what was stated. Fundamentals of Court Interpretation at 477.
        3. The interpreter’s rendition of the witness’s testimony can have a great impact on the fact finder’s perception of the witness’ credibility. The interpreter should therefore reproduce the speaker's tone to convey the same degree of hesitancy or assertiveness that was present in the witness's testimony. Fundamentals of Court Interpretation at 476. 
        4. Some witnesses will speak at a measured pace; others who are excited will speak rapidly.  The interpreter should adopt the same pace as the speaker. 
        5. The interpreter must render non-responsive answers by witnesses just as precisely accurately as any other. For example, the New Jersey Supreme Court Task Force on Interpreter and Translation Services (1985) states that “When a witness’ answer to a question does not respond to a question that was posed to the witness, the witness [sic] court interpreter shall render a consecutive verbatim court interpretation, leaving issues of admissibility of such response to the court and counsel.”
    15. At the judge’s discretion, it may be permissible to examine the witness through an interpreter with leading questions given the difficulty of obtaining accurate testimony through interpreted testimony. See L. Whinery, The Judge’s Evidence Bench Book, § 611.1 (2004).
    16. In some instances, courts have required that any person who testified at deposition in a language other than English to use an interpreter when testifying at trial, unless the witness is sufficiently fluent in English to testify in English and the opposing party does not object to the witness testifying in English.
    17. Failure to object to the performance of an interpreter's services is a waiver of objection. United States v. Guerra, 334 F.2d 138 (2d Cir.), cert. denied, 379 U.S. 936 (1964). Failure to challenge the expertise of an interpreter at the trial level precludes appellate review. United States v. Miller, 806 F.2d 223, 224 (10th Cir. 1986).
      1. Courts vary in their preferred procedures for handling challenges. The New Jersey Supreme Court Task Force on Interpreter and Translation Services (1985) recommends the following procedure: when an alleged error is detected by someone other than the court interpreter, that person should, if testimony is still being taken from the stand, bring the allegation to the attention of the court. At that time the court will determine first whether the issue surrounding the allegedly inaccurate interpretation is substantial enough to warrant determination. If the court agrees that the error could be prejudicial, then the court will hear evidence as to what the correct interpretation should be from experts submitted by both counsel, from the court interpreter , and from any other expert selected by the judge. The judge shall make a final determination in view of the evidence as to the correct interpretation. If the determination is different from the original interpretation, then the court shall amend the record accordingly.
  2. Practice Tips for Choosing and Using an Interpreter
    1. There are several professional associations of interpreters and commercial agencies from which to select interpreters. Associations include the American Society of Interpreters, the American Association of Language Specialists, the American Translators Association, the National Association of Judicial Interpreters and Translators. While some associations admit members on the basis of proficiency, membership in a professional association does not alone provide evidence of interpreting skills. Further, there are federal and state certifications for court interpreters. Otherwise competent conference interpreters may not be familiar with the legal language, customs and court practices. In selecting a court interpreter counsel should verify that the proposed interpreter meets federal and state certification requirements and is familiar with the unique aspects interpreting the testimony of witnesses in a courtroom.
    2. Although in many instances the courts have found that there was no prejudicial effect resulting from the appointment of an arguably biased interpreter of testimony, and although they have disagreed as to what relationships or interests are indicative of bias, the better practice is for the parties to agree to the use of one or more interpreters or for the court to appoint a disinterested interpreter where one is available. Cases regarding the issue of interpreter bias are collected in DISQUALIFICATION, FOR BIAS, OF ONE OFFERED AS INTERPRETER OF TESTIMONY, 6 A.L.R. 4th 158 (1981).
      1. The Code of Professional Responsibility (Administrative Office of the United States Courts, 1987) that governs federal court interpreter provides guidance in this regard: “The official court interpreters maintain impartiality by avoiding undue contact with witnesses, attorneys, and defendants and their families, and any contact with jurors. This should not limit, nevertheless, those appropriate contacts necessary to prepare adequately for their assignments” (p. V-1). This means that the interpreter should not have independent conversations with the witness other than to ascertain the witness’s country of origin, dialect, and speech mannerisms. Fundamentals of Court Interpretation at 495. 
    3. Practice Tip: It is essential to find an interpreter who is not only fluent in the foreign language, but one who is familiar with the technical and business terms, and the important legal concepts in the case. The interpreter should be familiar with the nuances of the words in the documents and should understand the parties’ positions regarding the meaning of important terms.
    4. Practice Tip: In selecting an interpreter, counsel should consider many of the same factors that go into selecting an effective witness. The interpreter speaks for the witness. The interpreter must therefore appear truthful, knowledgeable, and be personable.
      1. As one interpreter’s handbook correctly observed: “Because the interpreter represents the voice of the defendant to the court and vice versa, it is imperative for the interpreter to capture every element of the source language message and transfer it as wholly and faithfully as humanly possible. This is the difficulty of consecutive interpretation in the legal setting. Any distortion of style, meaning, disorganization, or nonfluency in delivery will negatively impact on the credibility of the witness and the effectiveness of the speaker.”  Fundamentals of Court Interpretation at 380.
      2. The interaction between the witness and the interpreter is of great importance and the witness should be confident of the interpreter’s proficiency, understanding, and competence.
    5. Practice Tip: Counsel must speak loudly enough for the interpreter to hear and not speak too rapidly. Questions to witnesses should be as short and as unambiguous as possible. Counsel should pause and ask more specific questions to break the testimony into shorter responses.
    6. Practice Tip: Counsel should avoid terms with meanings dependent on a cultural context, slang or usages drawn from the television and sports.
      1. If the interpreter understands the meaning of the source language but there is no equivalent in translation, then the interpreter must inform the judge that there is a problem expressing the idea in translation. The judge may instruct the attorney to rephrase the question using less culture-bound terms or to use terms which the witness can understand.
    7. Practice Tip: According to one handbook on the use of court interpreters the most effective way to avoid interpreter fatigue without unduly prolonging the proceedings is to have a team of interpreters. It is not uncommon practice in the United States district courts to assign two interpreters to any case lasting more than two hours (New Jersey Supreme Court Task Force on Interpreter and Translation Services, 1984, Chapter II, note 7). Most guidelines for the use of interpreters recommend that trial interpreters should work in teams and relieve each other periodically. (Edwards, 1988; New Jersey Supreme Court Task Force on Interpreter and Translation Services, 1985; Superior Court of State of Arizona, County of Maricopa, 1985)
    8. Practice Tip: Counsel should streamline the examination of a witness testifying in a foreign language. The longer a witness testifies in the foreign language, the more difficult it will be to hold the fact finder’s attention.

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