Does it ever happen that when an important witness is expected to testify in another language, that one or both of the sides hire their own interpereter to keep an eye on events?
If they do, and the “consultant” interpereter feels that the court-appointed interpereter got something wrong, how might it be handled?
The court reporter always (in my experience) runs an audio recorder as well as using a steno machine, and typically that audio is available for a period after the trial and is used as an aid in preparing the trial transcript. If a question of fact arose about the accuracy of interpretation, I imagine that the audio recording could be made part of the record on appeal.
I have seen cases in which the trial transcript, or portions of it, were unavailable for the appellate record, and the appeals court response is basically, “Tough shit. You have to cite in the transcript where the errors are that you’re appealing, and if you can’t, and they’re not obvious from the remaining record, then you’re out of luck.”
Then the side that disagrees with the interpreter would object, and they’d take the jury out and maybe have a hearing about the accuracy of the complained-of translation.
Ultimately, matters like this are up to the discretion of the trial judge. He’ll decide whose version is communicated to the jury, and if one side feels screwed, they would register a continuing objection to preserve the issue for appeal, and make sure there was audio recording to back up their objection.
It has not been struck from the record. It never entered the record in the first place.
He should disclose this fact to the court and the court will remove him or her from the jury. Ideally, this sort of thing should come out during the jury selection process. In selecting a jury, you want to eliminate anyone who has any special knowledge about the facts of this case or the law. The jurors should work only with knowledge that is presented to them in court.
It’s the defense attorney’s role to bring this out in testimony.
The courts I practise in don’t use a steno at all. Everything is recorded, and if a transcript is needed, it’s made from the recording. As you suggest, if there ever were a question about the accuracy of the translation, the recording in the original language would be available.
That’s my understanding as well. The reason for the interpreter is usually because the judge and/or jury don’t understand the testimony in the language it is given in by the witness. The judge and jury therefore decide the case based on the testimony as translated by the interpreter. Since the judge and jury don’t rely on the original version, it’s not the evidence.
In Canada, there’s no general rule, because there are large areas of the country where the great majority of the population are monolingual, either English only or French only.
A lawyer who only spoke the majority language practising in those areas of the country wouldn’t find it a handicap.
But a lawyer practising in areas that had a substantial minority linguistic group (Montreal, New Brunswick), would probably find it would be helpful to be bilingual.
I practise in an area that is largely anglophone. Being bilingual is nonetheless an asset, because situations arise where a lawyer is needed who can argue a case in French, which I’ve done on a few occasions.
So, lawyers, tell me your opinion of Twelve Angry Men. Proper jury deliberation or mistrial?
Main case in point, evidence at the trial was that the murder weapon was an unusual almost unique design of knife. The witness said he had never seen one like it before. But one juror investigates on his own and says that the knife is actually a very common design, and produces an identical one.
Also, other jurors present their own personal knowledge, such as the discussion of the correct way to stab someone. The victim was stabbed downwards, but the juror knows that the accused would have stabbed upwards if he killed someone.
If that happened in a real trial, and the court found out about it, what would be the result?
Improper, but in Canada, it could not be the basis to overturn the jury decision. Here, it’s a criminal offence to reveal the deliberations of the jury, and therefore the court will not inquire into what went on in the jury room.
We had a case several years ago in Saskatchewan where the sheriff guarding the jury reported to the court that he heard the jury decide the case by a majority vote, rather than unanimity. The defence counsel moved to have the verdict set aside. The Court of Appeal ruled that the court could not inquire into the deliberations and denied the appeal. I don’t think it went to the Supreme Court, but I think I’ve since see the Supreme Court refer to the case with approval.
Here’s a case from Saskatchewan which deals with this issue: Ochapowace Indian Band v. Saskatchewan (Minister of Justice). Some of the testimony was given by First Nations elders in Cree and Saulteaux, which was translated for the Court. On appeal, the Band applied to have the evidence included in the transcript in Cree and Saulteaux. The Queen’s Bench denied the motion and held that the transcript need only include the translation (see paras. 14, 16).
Not long ago I was in the jury pool for a case involving a death caused by a car accident. The case was going to hinge on expert witness testimony, the only issue really at question being whether the driver who crashed into the other car was legally drunk, and there being issues about the handling of the blood sample. In voir dire, the attorneys and judge were particularly concerned about the fact that I was a mathematician and questioned me closely. The judge made it clear that, if I was to catch an expert witness in a mistake using whatever specialized knowledge I might have, they would expect me to ignore that. I said I would try, but wasn’t sure I could. I did not get picked for the jury.
Here’s another angle:
In a case in which I was on the jury, the defendant’s testimony depended upon it being dark at the time. We had heard the time of day and the date, and we all knew that this occurred very close to the summer solstice so it would not have been dark. We returned a guilty verdict.
I researched (years before this) the Charlie Chaplin paternity case and came upon a ruling by the California Supreme Court: Certain facts are beyond the knowledge of the court and it would be improper for the court to dismiss them (expert testimony and such). Neilson v. Houle, 200 Cal. at 729.
In the NY prison system, we’re required to conduct hearings in English. If the prisoner doesn’t speak English then we have a translator present who will translate everything said from English into Spanish (or whatever other language he speaks) and vice versa. We have to do it this way even if we have a hearing officer who speaks Spanish himself. And the hearing officer can’t act as the translator.
This is depressing. What are the precedents for these willing ignorance on the part of our legal system? I guess I could see that this might be a double-edged sword, but if I’m ever accused of something, I want people with all of the specialized knowledge possible to decide my fate. Stupid people able to be convinced by one or the other lawyer (and thus by whomever they choose to testify) are not who I’d like to stake my life on.
I’m sorry, but you’re missing the point.
Suppose the Spanish-speaking juror is an Argentinean who thinks Mexicans are, for the most part, trashy scum. (An attitude, I might add, not without its adherents in South America). Why do you want the jury to hear his version of the translation an accord it as much or more weight as that of the official translator?
But you’re going farther than that, are you not? The Spanish testimony is not part of the record, so (at least in theory) even the Spanish speaking juror himself isn’t supposed to base his own decision on it.
You would stake your life on evidence that you yourself did not get to hear? That your attorney didn’t get to cross-examine or clarify or object to? That the judge doesn’t know about?
Sure. But the point of the rule is to prevent one juror from poisoning the entire jury.
In New York trial courts, there is usually either an audio recording system or a stenographer, but I don’t think I’ve ever seen both simultaneously. The higher level the court, the more likely there will be a stenographer taking down the proceedings.
Because I’ve just written a brief on this, under New York law (in civil cases, at least), if because of equipment malfunction or other cause the recorded or stenographic record is unavailable, the parties must draft recreations or summaries of the unavailable portion, and then the trial judge must, using all available sources, put together a recreated record for the appeal, or if this is impractical, order a new trial.
I would suggest that you’re confusing expert knowledge with impartiality. They’re not the same things.
For instance, in my jurisdiction, the experts in the area of fingerprints are almost entirely employed by the RCMP crime lab. There aren’t a lot of private fingerprint experts.
If you were charged with an offence that turned on fingerprint evidence, would you want to be tried by a group of non-experts, sworn to decide the case randomly, with your lawyer having the ability to cross-examine the expert witnesses on fingerprints called by the Crown?
Or would you want it decided by a jury of fingerprint witnesses from the police crime lab, who are the acknowledged experts (by your own criterion), with them making their decision based on their own opinions in the jury room, not subject to cross-examination by your lawyer?
OK, so the proper thing for the juror to have done (if he REALLY though that the translation was in error, otherwise he should just keep his mouth shut), would be to go to the judge and tell him his concerns?
Would it be safe to say that the prosecution or defense would have had their own bilingual guy there to make sure that the expert witness translated properly? (Actually, since this was a real case, did they?)