Introducing
foreign language evidence at trial
By Omar
Anorga
From
time to time, litigators will be faced with the hurdle of having to introduce
and admit foreign language testimony at trial. At first this may seem daunting.
But it should not be, since introducing and admitting foreign testimony is
fundamentally the same as doing so for testimony in English except for an interpretation
and translation component.
With
California’s increasing cultural diversity, sooner or later litigators will likely
have to examine or cross-examine a non-English speaking witness or party. Employing
the services of an interpreter will be crucial. Therefore, litigators should be
familiar with California Evidence Code sections 750 through 756, which
govern the issue.
During
pretrial preparation, counsel should meet and confer about the abilities of
witnesses and/or parties to provide testimony in English at trial. To the
extent one of these individuals is identified as needing an interpreter, counsel
should stipulate to the appointment of one. Stipulating before trial avoids
delay when a non-English speaking individual is called to the stand to testify.
The
stipulation should address the cost to be paid by each party for the
interpreter’s services. Keep in mind that the prevailing party can recover
these costs from the losing party. The parties should also discuss whether the
interpreter will have an opportunity to meet with the testifying individual
prior to trial. This allows the interpreter to become familiar with that
individual’s speech patterns and regional idioms. For example, a person from
Mexico may understand the Spanish word “cintura” to mean “waist,” but a
Salvadoran may interpret the same word to mean “lower back.” Appropriate word
translation is crucial in cases where foreign language evidence is being
offered, as it can be dispositive in accurately describing a claimant’s
allegations and damages.
If counsel
have not entered into a stipulation, a court may be called upon to do so.
Normally, when appointing the interpreter, the court will also set the
interpreter’s fee schedule and order the fee to be paid by one or more parties.(Cal.
Evid. Code §752(b).) The determination of whether a
particular witness needs an interpreter is largely a matter of trial court
discretion. However, when the uncontradicted evidence shows a witness does not
speak or understand English, the failure to grant a motion to appoint an
interpreter is an abuse of discretion. (See Gardiana v. Small Claims Court (1976) 59 Cal.App.3d 412, 418-19.) Moreover, in criminal defense matters, the
right to an interpreter is expressly guaranteed by the Constitution and cannot
be waived without an affirmative showing on the record of an intelligent and
voluntary waiver by the defendant. (See People v. Chavez (1981) 124 Cal.App.3d
215, 227.)
Any individual who interprets in a court proceeding must be
certified to do so. (Cal. Gov. Code § 68561(a).) There are
some instances where a court may, for good cause, permit a non-certified
individual to interpret testimony at trial. However, to stay away from the
appearance of bias, courts generally prohibit relatives or friends of one of
parties as an interpreter without the consent of all parties. Also, an
interpreter is required to “disclose to the judge and to all parties any actual
or apparent conflict of interest,” including the fact “the interpreter is
acquainted with or related to any witness or party to the action [or] has an
interest in the outcome of the case.” (Cal. Rules of Court, Rule 2.890.)
Failure to make such a disclosure may be grounds for disqualification.
Other grounds for disqualification may be related to the
interpreter’s competency. Interpreters are treated as expert witnesses, and
their competency must be established under the same rules that apply to other
expert witnesses. (See, e.g., Gardiana, supra, 59 Cal.App.3d at 418.)
The basic competency of a court-appointed interpreter rarely is an issue
because California has a rigorous certification procedure for court
interpreters and noncertified interpreters cannot be appointed except on a
showing of “good cause.” (See Cal. Gov. Code §§ 68561(a), 68562; Cal. Rules of
Court, Rule 2.981.)
Not only do litigators have to be prepared to deal with non-English
speaking witnesses, but equally important they have to be equipped to handle
the introduction and admission of evidentiary documents written in a foreign
language. Litigators will be relieved to know that the same principles that
require the appointment of an interpreter for witnesses unable to speak English
apply to the translation of writings. (Cal. Law Revision Com., com., Cal. Evid.
Code § 753.) If the characters in any writing to be introduced at trial cannot be deciphered or understood directly, that writing will
need to be translated and the court will be required to swear in a qualified
translator to translate the writing at trial. (See Cal. Evid. Code § 753 (a) –
(c).)
Even before trial, litigators should be prepared to have any and
all important writings translated by a certified translator, as failure to do
so can have detrimental consequences to their case. For example, in Chevron
Global Tech. Servs. v. Little, the court denied the defendant's motion to dismiss, in part, because
it was unable to ascertain the provisions of an underlying
Spanish-language contract and neither party had submitted a declaration
containing a translation of the document. (Chevron Global Tech. Servs. v.
Little (N.D. Cal. August 22, 2006 No. C-06-3157 MMC) 2006 U.S. Dist.
LEXIS 63317, at *7.)
For the benefit of their clients, California litigators must be
prepared to introduce any and all beneficial evidence, including oral or written
testimony, in a foreign language. Litigators should identify potential
witnesses that may require the assistance of an interpreter and documents that
need to be translated early on in the case to ensure that they are adequately
prepared to defend or prosecute their case.
Omar S. Anorga, founder of the Anorga Law Firm
Inc., practices business law. This article originally appeared in the summer
issue of the 2016 CYLA eNews and is reprinted here with permission.