What Attorneys Need to Know About Translators and Interpreters Serving as Expert Witnesses
Court-certified interpreters are often asked to serve as expert witnesses in court. All foreign-language documents submitted in federal court proceedings must be translated into English. If the parties can’t agree before trial on the accuracy of a document translation, and the disputed portions of the translated document(s) are material to the issues in the case, the translators may end up as witnesses at trial.
Fed. R. Evid. 604 states that “(a)n interpreter is subject to the provisions of these rules relating to qualification as an expert . . . .” Even though this rule explicitly applies only to interpreters (who translate spoken language), as opposed to translators (who translate written language), no less an authority than Prof. Edward Imwinkelried says, without qualification, that translators are expert witnesses (The Taxonomy of Testimony Post-Kumho: Refocusing on the Bottomlines of Reliability and Necessity, 30 Cumb. L. Rev. 185, 211, fn. 150 (1999-2000)), and the courts generally treat them as such.
This means that, once the court has determined that the parties’ translators qualify as experts under Fed. R. Evid. 702, counsel can use all of the standard techniques for examining and cross-examining them as are used with any other kind of expert witness. Unless the trial is a bench trial, the jury, as the finder of fact, will evaluate the translator’s testimony in the same manner as it evaluates the testimony of any other expert witness.
Finally, one expert suggests that the court might consult a neutral language expert (such as a court interpreter), on the theory that such an expert will be less likely to be biased (even subconsciously) than a translator retained by a party. (Clifford S. Fishman, Recordings, Transcripts and Translations as Evidence, 81 Wash. L. Rev. 473, 512 (Aug. 2006)).
However, the author also cautions that the court shouldn’t automatically accept a neutral court-appointed witness’s conclusions as determinative, since the accuracy of that expert’s translation is subject to the same standards as those advanced by the parties’ experts.