Yes. The juror should, without talking to other jurors about it, send a note to the judge expressing his or her concern. That note would then be shared with the lawyers for both sides and those lawyers, with the judge, would then discuss what to do. Depending on the juror’s concern (which, frankly, may or may not be legitimate), the judge could do a number of things, including excusing the juror if the juror can’t ignore the actual testimony given.
Typically the rules permit a party to have a “check interpreter” (not, as I first thought when I heard the term, a “Czech interpreter”) there to challenge any misinterpretations by the interpreter. There are a number of reasons you may or may not do that, one of the primary ones not to do it being cost. But it’s certainly an option.
I didn’t mean it was depressing just in the language sense from the OP. But from the fact that the general legal thing to do is check your brain at the door. A judge’s orders to a mathematician to ignore the expert witness’ mistake if that expert witness makes a mistake? Let’s say I slip into the jury for a product liability lawsuit, and some expert witness makes all kinds of errors on sheer strength, fracture modes, and automotive collisions? I should go to the judge to get dismissed from the jury and let them award millions of dollars based on something that’s wrong? Again, I really want a jury of my peers – real peers – if I’m ever in the hot seat. Well, unless I’m guilty and trying to hoodwink someone.
The goal is that all twelve jurors are presented with the exact same evidence. If one person has some special knowledge then they are in effect hearing different evidence than the other eleven jurors. If an expert witness is getting his facts wrong then it should be the judge, the lawyers, and counter-witnesses who expose this and allow all twelve jurors to make their own judgements based on testimony they all heard and knowledge they all now share.
I speak Spanish (well, I struggle; my father was from EL Salvador but he wanted his kids to learn English and so that’s what we spoke at home), and there was nothing about the translation that struck me as improper. It’s long enough ago now that I don’t recall the specifics of what the juror claimed was wrong.
We didn’t have an independent translator there – remember that I was a public defender. Our budget for independent translators was exactly equal to our budget for hovercars and holographic projectors.
Based on Bricker’s answers previously, I think what’s more likely to happen is - you tell the judge and both attorneys your concerns. One attorney says “Wait a sec - the expert witness the other guy used was wrong? Judge, can I have a continuance?” and then the attorney consults a few of his own experts, and has them testify in court. You’d be long gone at that point, but the rest of the jury would hear your concerns indirectly.
It can. I was involved in a case where the witness only spoke Turkish. Both sides hired an interpreter. In this matter, there was an issue in the interpreting that came up and it was settled by the judge with input by the interpreters. (It helped that this was a bench trial). What the judge did was simply reask several questions to get the information.
The deal with experts is that there that they have to be qualified. The court can qualify or disqualify an expert and believe me you can object to the expert’s credentials and testimony. In the products liability scenario that you have disclosed, both sides have to disclose who their experts are and what they are expected to testify about. Moreover, both sides in this scenario will conduct depositions of the experts and said depositions will be reviewed by the other side’s expert.
For the most part, there is no such thing as trial by ambush. Usually, the facts and the other side’s case are pretty well known to the parties.
But aren’t you assuming that the juror is automatically right in that situation, and the expert witness is wrong? is it fair to make that assumption?
the basis for calling experts is that they are required to explain their opinion, under oath and in open court, and are subject to being cross-examined by the other side, to test the value of their evidence.
if a juror thinks that there’s a mistake in that evidence, there may be. Or, it may be that the juror is mistaken, for some reason. It’s not fair to the parties to have the decision made by the juror’s opinion on the factual issue, without the parties having a chance to test that juror’s opinion, just as they have the chance to test the expert witnesses’ opinions.
Language issues can be very interesting. I’m about to go to trial in a civil case (in English) with a Spanish-speaking-only plaintiff and a defendant who speaks little English and an Asian language natively. Not going to name the language just to keep this more confidential. Both sides have had “check interpreters” at most of the depositions. Our Asian-language check interpreter was much better than the official interpreter for one depo; she had to tactfully interrupt and correct the translation several times. The two interpreters would usually discuss the issue off the record. Then, back on the record, the official interpreter would correct his own translation. Another issue occurred when I was taking the plaintiff’s deposition. Because I speak Spanish and I know the facts of the case, I was able to correct the record regarding whether the female defendant said she was horny. Actually I know she said, “I am caliente,” in Spanglish. This is incorrect on several levels, as we believe she meant that she was temperature-hot, not horny. If you want to say you are temperature-hot, you would use the word “calor,” and if you are horny or (hot) you might use the word “caliente.” This is getting long and involved but the point is that regardless of what she meant, it is important that what she said, with the mix of Spanish and English, was repeated exactly, rather than having the “caliente” interpreted as horny. I had to have the interpreter confirm with the witness that the words were actually a mix of Spanish and English, “I am caliente,” not “I am horny,” and then have the interpreter not interpret the caliente but leave it in Spanish for the record. Had I not spoken Spanish, I would not have been able to catch this. Then again, that’s partly why I’m on this case. I think this post was too confusing but I spent all this time writing it so I’m leaving it.
And just to clarify, in the plaintiff’s deposition, the plaintiff was repeating what the female defendant had said. The female defendant said, “I am caliente” to the plaintiff.
If this weren’t GQ, I’d debate this. But, as it is, I’d like a citation. Trial by ambush seems to be assumed in the way witnesses are coached. I don’t know how many times I’ve seen even on here someone telling a witness to not say certain things, and talk about how a good cross-examiner actually tries to trap you into saying something you weren’t planning on saying.
I will still continue to wonder how a juror, without access to untainted facts, is supposed to figure out which part of each side’s argument is the truth. And if that isn’t the jurors’ job, I can’t figure out what there job actually is.
And, no, just repeating that they are triers of facts is not in any way clear. What are they supposed to use as a basis for determining which information is factual? Are they really just supposed to go by their gut?
I just found a story on the interwebs how a trial in Sweden was stopped by the judge because the interpreter (English/Swedish) didn’t know English well enough. As the judge put it: “The translation was just outright wrong. I could hear it although I’m not that good at English myself”.
Hmmmm. My experience is a bit different I guess. I was on a jury for an extraordinarily boring trademark infringement case, and some of the testimony was in French. The interpretation was pretty good, though, and I didn’t really mention anything in deliberations about it, but there was no fuss about it at all. I was just doubly bored since I had to listen to the same rambling testimony twice. I did say that I spoke French at voir dire, so maybe they thought it was okay, but I received no particular instructions from the judge.
Your own comment is the citation. Witnesses could not be coached effectively if the lawyer didn’t already know what they were likely to be put through. It’s not that witnesses will come across unexpected evidence that the prosecution didn’t disclose. It’s that they would be unprepared for the way prosecution is trained to trip them up. Even the simple act of asking a question in a slightly confusing way - can make a witness pause, which could seem like they are lying.
I have to ask though - obviously the prosecution is subject to disclosure of pretty much everything (except ‘work product’). It seems reasonable to me that the defense has to disclose witnesses it plans to call and evidence it plans to submit. But does defense have to disclose to the same extent that prosecution does, assuming the something in question won’t be brought up by them at trial?
Ideally, the facts aren’t untainted (at least by prosecution). But, the unreliability of the process is the whole basis of having a large jury of non-experts to consider the verdict, and further the reason it must be unanimous. We might be served better by jury training about such things as the fact that witness testimony (and memory in general) is extremely unreliable.
Their brain more than their gut hopefully, combined with the benchmark burden of “innocent until proven guilty”.
I agree there are some problems.
The jury usually gets instructions, as to the matter of law, and definitions, of how to determine certain facts.
Of course, sometimes this violates common sense, and/or common decency. Hence jury nullification.
I was talking to a court interpreter yesterday, and she told me that “Spanish” has many many many variations. Puerto Rican Spanish (her specialty) is different from Mexican Spanish, which is different from the Spanish used in Spain, etc. etc.
If the juror knew a different variation of Spanish, he could not be trusted to give an accurate interpretation of what the witness said.
Ehr… not really. It’s not like there are big glass walls at the borders between countries and regions; dialectal variations don’t follow lines in the maps very well.
Think of it this way: specialization for English translators differentiates “American English,” “British English”, “Canadian English”… always by nation-state border lines. And yet, I wouldn’t be surprised if the speech of someone who was born and lived his whole life in Seattle was more similar to the same from Vancouver than to someone from Boston, Atlanta or Tucson. And it’s not like people from Glasgow sound like people from Edinburgh, Manchester, Belfast or Birmingham… but would you expect to understand them? Sometimes not; much of the time yes.
Spanish also has a different conversational emphasis than (American) English: in Spanish, the speaker carries the greater load in making himself understood - my experience is that this tends to be the case for Britons and Irishfolk, not so much with Americans. Spanish speakers are in general pretty good at coming up with on-the-spot definitions or with synonyms. If language worked like that interpreter and other folk like her paint it, myself and several Spaniards whose dialects are different from mine wouldn’t have been able to work with people from Argentina, Colombia (two different dialects), Mexico (three different dialects), Houston, Chile and East LA without interpreters: yeah rite. I have more problems understanding some of my Andalusian (same country as me) current teammates than I ever had with the Colombians.