Cross-cultural and international disputes in the US courts often involve testimony by foreign witnesses who need a foreign language interpreter for the translation of questions and answers from English into a foreign language and from a foreign language into English. Although every jurisdiction has its own rules, here’s a review of some basic principles to keep in mind when working with court interpreters, legal translators and deposition interpreters in Denver, Colorado, and elsewhere:
- Rules of procedure applicable in both civil and criminal actions provide that the court may appoint an interpreter of its own selection. 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. However, 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.
- 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.) The 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. However, the 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).
- 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, 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).
- 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).
- 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).
- 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).