I didn’t want to hijack Asimovian’s thread, so I’m starting a new thread. In post 6, Bricker said
I guess my question (for everyone, not just Bricker) is roughly, what’s wrong with a witness talking about testimony said in Spanish?
The juror could understand the original Spanish, which is the witnesses testimony, so presumably he could use that in forming his opinion and verdict (right? The court doesn’t pretend that Spanish was never spoken, does it?). During deliberations, aren’t jurors expected to discuss their interpretations of the testimony? (I’ve sat on one jury, but case was dismissed before deliberations.) Assuming so, then all jurors bring their own point of view. Even if they get a transcript of English testimony, where they all agree on and understand the words, they could disagree on “what the witness was REALLY saying.”, and certainly could disagree on who they believe.
It could be argued that his knowledge of Spanish might mean other jurors might give his opinions more weight, but they’re liable to do that anyway, based on who they like, or who is more vocal.
Last summer, I was on a jury for a civil trial - one of the big things in the jury instructions was that we jurors were not to use our own personal knowledge to inform our decisions in the jury room, and especially not to use that knowledge to sway other jurors.
Jurors are supposed to be using the testimony from the trial, and that alone.
(I don’t think this is a realistic instruction, but AIUI it is common, and it is the ideal that the courts shoot for.)
I read Bricker’s comment to mean that the Spanish speaking juror was offering a very different interpretation of the witness’ testimony than that provided by the official interpreter. Whether that was an accurate claim is certainly open to interpretation.
FTM, I’d think that the accusation that the interpreter wasn’t offering accurate translations would have to be investigated pretty rigorously if anyone had brought that to the judge.
When one juror tells others “what the witness really said” he’s left the role of juror and become, in essence, a witness. All the jurors may discuss how to weigh the testimony, but when one witness has (or says he has) an expertise in a particular area, and uses that expertise to supply facts to the jury that were never in evidence, he’s outside the bounds of his role as a juror.
Imagine a juror who lives near the scene of the crime that’s the subject of trial. One night he goes home and measures the distance between where the witness said he was and what the witness says he saw. The next day he comes back to the jury and announces, “It’s 100 feet from where Smith said he was standing to where Jones was when he entered the store, so no way could Smith have seen that little gun in Jones’ hand.”
That’s improper. The jury can only consider facts they learn at trial. If all members of the jury visit the site in the course of the trial, that’s fine (if a bit unorthdox). For one juror to learn an extra-trial fact and present it to the other jurors is when the conduct becomes improper.
And to address the question asked by the thread title – one juror merely speaking Spanish wouldn’t lead to a mistrial. One juror telling the others that he spoke Spanish and that the interpreter’s work was in error, and that the CORRECT interpretation is xxx, did.
Wow. So the witness’s original testimony is considered to be “an extra-trial fact”?
How does this work if someone wanted to charge the witness with perjury? Would they have to base their charge on what the witness said in Spanish, or is the witness culpable for whatever the interpreter said in English?
No, what the juror SAYS was the witness’s original testimony has caused the juror to act as a witness, which is not allowed. It’s the job of the rival attorney to point out inconsistencies in translation, not the jury’s, and CERTAINLY not a single juror.
Edit: what would the defense attorney’s recourse be, if that juror didn’t know spanish at all, and only pretended to in order to convince the other jurors to vote guilty? Can you see no ethical problem here?
I’m still a little unclear here. Which speech, precisely, is considered to be the testimony? Is it the witness’s or the interpreter’s?
If it’s the witness’s, then it seems like it was there for all the jurors to hear, even if some of them lacked the ability to understand it. It happened within the walls of the courtroom, and under oath, right?
I’m trying to understand what happened here that made the juror into a witness. Suppose that, during deliberations, one of the jurors said, “While you were all watching the witness’s face during his testimony, I was watching his hands, and they were fidgeting nervously.” Suppose the other jurors agree that they hadn’t been watching the hands, and they agree that, had they seen the fidgeting, they would take it as evidence of lying. Does that make the first juror a witness?
EDIT: You ask if I see the ethical problem. I certainly see the problem here. I’m just wondering how the system formally deals with it. From what Bricker’s said, I gather that the original Spanish is considered to be extra-trail material. My questions are about what, precisely, is considered to be “in-trial” material, even if the jurors failed to comprehend it.
When a witness is going to speak in a language not recognized by the court, an interpreter is sworn. The interpreter swears that he or she will faithfully interpret the witness’s testimony into the language recognized by the court. That interpretation is then the evidence which the court will use to determine the case.
In my experience, if the case then goes on appeal, the transcript doesn’t include the testimony of the witness, only the interpreter’s version, since that’s the evidence that was before the court.
To add another possible layer to it, the judge, and the opposing counsel, are following legal precedents for evaluating whether the evidence presented to the jury is legal and relevant, and the judge is instructing the jury on what they should consider and what they should disregard. Presumably the court officers are only working based on the English testimony, unless they speak Spanish themselves and are aware that at least one of the jury do too.
So the witness could have said something that was entirely inappropriate and would have been struck from the record if it had been translated properly. Maybe the translator just didn’t bother mentioning it for that reason. shrugs
It gets interesting when different languages come into play. I’ve argued cases in French, before judges whose native language is English, but who are conducting the proceedings in French as is the right of the accused in Canada. It can be a bit surreal when the language of the proceedings is not the native tongue of most of the participants.
So what is the status of the original Spanish testimony? Is it an extra-trial fact as Tyrrell McAllister asked, and subsequent discussion seems (to me) to indicate? Anyone have a cite? It just seems surprising that testimony given in court, under oath, is effectively stricken from the record. (Is that the right term? I’m thinking of where the judge tells the jury to disregard a statement. (Yeah, as seen on TV. Sorry.) )
Then the other jurors accept his interpretation of the fidgeting. Except that maybe the witness’s hands* itched*. Maybe he was fidgeting because he didn’t use his prescription skin cream that morning and he was trying desperately not to scratch on the witness stand, and he wasn’t nervous at all and was telling the truth. Now you have all the jurors accepting the first guy’s interpretation of what they didn’t see. And maybe he should have just shut up and let them draw their own conclusions.
Bricker, what should a juror do then? Say he passes that spot on his way home every night, and sees that it was impossible for the witness to have seen what he said - say there’s a tree in the way or something. What should the juror properly do? Keep his mouth shut? Ask to speak to the judge and tell him about it? Because it seems that if a juror is required to vote based on information he absolutely knows/believes to be false, he’s not doing his job either.
Or what if a juror has specialized knowledge that contradicts what the attorneys are telling him? Say a crime is caught on surveillance video, and the case depends on the timestamps being very accurate. Prosecution has a witness who says they are. But one juror used to install systems for a living, and knows the timestamps are based on whoever set the clock on the VCR at the last DST change, and are subject to drift anyway, so you really can’t depend on them being accurate at all. What should he do?
So is some official record kept of the actual foreign-language testimony? Or is the witness just screwed if they realize later that the interpreter made a mistake?
ZenBeam, I think that the biggest question would be “does the court in question record testimony?” Audio recording, I mean. The court clerk makes an official transcription, of course. If there’s no audio recording being made, I don’t see how the court could make an accurate record of the testimony of someone in a language that they don’t speak, themselves. Even granting that the stenographer’s machine used for the transcript is based on a phonetic system, not alphabetic, I just don’t think that most people could accurately record the sounds of a language that they are not familiar with.
Sigmagirl, I don’t see the two situations as being congruent. With the body-language kibitzing, the rest of the jurors would or could have been able to interpret the information on their own. Had they noticed it. The “attentive” juror is not making his/her argument based on knowledge that the other jurors couldn’t have known. And the “attentive” juror is not arguing that the testimony given by the fidgeting witness was other than what the trial transcript reads, just offering his or her reasons for not finding it credible.
Speaking for my experience, jurors have to judge testimony of witnesses all the time in a trial. Sometimes witnesses are mistaken, or have forgotten things, have talked themselves into a false impression of events, or are deliberately lying - and the jury has the responsibility to make it’s own judgments about the reliability of a given witness or segment of testimony. So, having someone in the jury room saying that witness Q had body language that seemed at odds with their testimony is perfectly legitimate.
This seems very different from saying, in the jury room, “You’ve all been lied to, what the Spanish speaking witness said was actually this.”
I would expect that it is quite common that members of a jury will have personal expertise that might materially change the way they view a case.
That expertise may assist them in determining the facts of a case, so what is the position here ?
If a factually incorrect point is made, and not challenged one way or the other, but one or more members of the jury are aware of this error - especially if it could be significant - how should they proceed?
The juror should ask to speak to the judge. The judge will communicate the juror’s concern to both parties as part of deciding what to do.
For all he knows, maybe there’s a reason: perhaps the city landscaping crews just moved that tree there last March, and the crime happened in February, and the lawyers were already aware of the tree issue but didn’t bring it up for that reason.
Now, if the juror’s insight is correct, then one of the sides will obviously have an interest in developing that fact further. So that lawyer can send an investigator out with a camera or something, and come back with evidence that can properly be admitted at trial.
What’s the fate of the juror? Well, he hasn’t done anything wrong. If he drives by the place every day, no one can say he sought to perform any prohibited investigation; at the same time, he can’t be the way in which the jury receives the information. So what would typically happen is the judge would dismiss the juror and replace him with an alternate, or if there are no alternates, with agreement from both sides simply decide the case with one fewer juror.
Again, it’s the responsibility of the jurors to bring their own, common-sense experience to the deliberations. But they cannot bring specialized knowledge that would be unique to them. The example you offer here seems more common-sense than specialized, but let’s assume it isn’t. Let’s assume that the fact that clocks drift on surveillance systems is a fact that an installer would know, but not an ordinary person.
Same deal as above. Juror should go to the judge, and share his concerns. Judge will decide after consulting with each side.