PRESENTED BY JUDGE STANLEY J. RUMBAUGH DEPARTMENT 18 PIERCE COUNTY SUPERIOR COURT Current Issues on...

PRESENTED BYJUDGE STANLEY J. RUMBAUGH

DEPARTMENT 18PIERCE COUNTY SUPERIOR COURT

Current Issues on Courtroom Interpreters

Starting with the obvious, the interpreter is in court to accurately interpret the witnesses testimony, not be the witness

Witness says:

“Someone began to push me with a black tow truck. Later he began to move me.”

Interpreter Says:

“Someone began to honk at me and I moved.” (fn 1)

Witness says:

“I don’t even have ten cents.”

Interpreter Says:

“I don’t even have ten kilos.” (fn 2)

Witness is asked by counsel:

“Do you remember the day [defendant] sexually assaulted you?”

Interpreter asks the witness:

“Do you remember the day [defendant] made love to you?” (fn 3)

The growing requirement of bilingual courtrooms mirrors expanding bilingualism in the larger culture regionally, and nationally.

By the 1990 census, 13.8% of Americans over the age of 5 did not use English in the home. (fn 4)

Of that 13.8% in 1990, 44% (almost 14 million people) spoke English less than very well. (fn 5)

By 2011, 20.7% of all Americans over the age of 5 did not use English in the home. (fn 6)

Of the 20.7% of individuals not speaking English in the home, 62% speak Spanish in the home, 4.8% speak Chinese (Mandarin), 2.6 speak Tagalog, and 2.3% speak Vietnamese. (fn 7)

Filling out the approximately 28% remaining is a melange of nearly 300 recognized languages or dialects. (fn 8)

Exclusion of bilingual jurors who have doubts about their ability to ignore original, non-English language testimony in favor of English language interpretation is authorized. (fn 9)

The venire of prospective jury members must be composed of individuals who reasonably reflect the ethnic and racial composition of the vicinage population. (fn 10)

The requirement of a racially neutral explanation for juror challenge (fn 11) does not, ipso factor, prohibit bilingual jurors from being subject to challenge because of their bilingual abilities.

Intentional discrimination is not established by exclusion of bilingual jurors who are hesitant to swear allegiance to the foreign language to English evidentiary interpretation of a court interpreter, regardless of the accuracy of the interpretation. Such hesitancy can be accepted as a racially neutral explanation for the challenge. (fn 12)

Some state constitutions offer greater protection against the potential for discrimination in jury selection than exist under Federal law. (fn 13)

Greater state constitutional protections do not necessarily prohibit peremptory challenges of bilingual jurors who express concern about basing their decision only on the English interpretation of testimony. (fn 14)

The so-called Hernandez accommodation presents an alternative to exclusion of bilingual jurors whose sole reliance on the English record cannot be assured.

Bilingual jurors can be impaneled with a process in place to inform the court of potential or perceived interpretation errors.

Jurors can be permitted to inform the court of perceived interpretation error and furnish the court with written explanation of the difference between what the juror heard and what the interpreter said.

A second alternate to resolving the bilingual juror’s “harsh paradox” is to remove the paradox. This removal is accomplished by confining what the jurors hear exclusively to the simultaneous translation.

Recorded foreign language testimony, in some jurisdictions, forms part of the official record and has independent evidentiary value.

Special instructions to the jury defining exactly what is the official record of proceedings, and confining the jury’s attention to the English translation, are required in some states. (fn 15)

Why not acknowledge both the original foreign language testimony and its English interpretation, allow jurors to consider both, and preserve both for the record?

For cause challenges are generally not permitted of jurors with highly specialized skills, other than language skills, who can assure impartiality. (fn 16) There seems no reason to treat specialized language skills any differently.