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Introducing foreign language evidence at trial

By Omar Anorga

Omar AnorgaFrom 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.