When an individual is a foreign language speaker, there are many difficulties and potential injustices when a proceeding involving their interest is heard in court or administrative hearings. Although these individuals lack nothing in terms of mental capacity, their situation can often be compared to a witness with a diminished mental capacity. The reasoning being that due of their inability to comprehend the English language they are incapable of making informed decisions or offering informed opinions and statements.
According to the law, before one is allowed to testify the threshold question of whether a witness has the capacity to do so must be answered. This is a question of law and there exists a presumption of a capacity to testify. Further, capacity to testify has no connection to one’s capacity to perform in other aspects of life. Generally, this threshold is determined with two questions: 1) whether the proposed witness is capable of comprehending the nature of an oath, and 2) whether the witness is capable of giving an accurate account of what they have seen or heard. The second question carries the greatest weight.
When the witness is a foreign language speaker, these same threshold questions must be asked. Whether they are able to understand the nature of the oath and whether they can give an accurate statement. More often than not, this second question is satisfied with the presence of a foreign language court interpreter. However, if the foreign language speaker also has a mental disability, this determination can be more challenging as the court interpreter may be asked to translate medical questions.
To read our legal translation and legal interpretation blog entry “Professional Translation Services for Estate Planning and Probate Attorneys, Undue Influence, and Your Foreign Language-Speaking Client’s Testamentary Capacity” click here.