17 Jul On the Witness Stand: How the Federal Rules of Evidence can guide the interpreters’ performance
Direct Examination: Could you please tell us what driving instructions, if any, did you receive from the defendant here, Mr. Delfín?
Interpreter: Puede usted decirnos –
Opposing Counsel: Objection!
Judge: Sustained.
Direct Examination: I’ll rephrase, Your Honor.
Sir, when you were driving the truck with the 20 undocumented persons in the back, did you know where you were going to take them?
Interpreter: Señor, cuando usted iba conduciendo el camión con los 20 indocumentados atrás, ¿usted sabia a dónde los iba a llevar?
Witness: Bueno, a mí me habían dicho que los llevara hasta Houston y que de ahí alguien se los iba a llevar… no sé a dónde.
Interpreter: Well, I had been told –
Opposing Counsel: Objection, Your Honor, hearsay!
There was a question posed for the record that you did not get to interpret for the witness. There was something the witness said that did not get translated and is not on the record. It happens more often than we’d like to admit, and every time it does, we feel like we have failed the Limited English Proficient (LEP) witness. Well, that’s only because we know very little about the rules of evidence. There are 63 different rules in the Federal Rules of Evidence, and most states have adopted very similar rules. As interpreters, we don’t need to know all of them, but knowing at least what rules apply when we are interpreting testimony is going to make our job a little bit easier.
First, as a general rule, the LEP witnesses for whom we interpret are factual witnesses, which means they can testify only about things about which they have personal knowledge. The rules for expert witnesses are different, so let’s look at factual witnesses first.
The testimony offered must also be relevant to the elements of the offense or the issue being litigated. If an objection as to relevance is raised, either when the question is posed or the witness begins to answer, the interpreter needs to stop interpreting as soon as the objection is raised and wait for the judge’s ruling. If the objection is sustained, that’s the end of that: neither the question nor the answer, as the case may be, gets interpreted. The judge has ruled that the evidence is not relevant. Do not insist on finishing whatever portion of a question or answer remained unfinished.
There may be objections to testimony that could be relevant but the effect would be more prejudicial than probative. It is extremely important for jurors not to hear such evidence. Again, if there is an objection along those lines (most likely argued at sidebar) and the judge sustains it, neither question nor answer should be on the record. If there was something said in the foreign language that did not get interpreted, that’s how it must remain.
The objection that may be raised most often with factual witnesses is hearsay. That’s because lay people don’t normally think to narrate ONLY the things they have seen, heard, or otherwise perceived through their own senses. The moment a witness starts to narrate what someone else said, or what they themselves may have said outside of the courtroom, hearsay objections will start to fly. If we know how to recognize hearsay, we can strategize the consecutive rendition to minimize how much foreign language testimony is uttered but never interpreted. Here’s Rule 801(c):
(c) “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
It is a pretty straightforward rule. So, if I hear a witness start to answer a question by saying, “Fulano de tal me dijo…” [“So-and-so told me…”], for example, I can immediately translate that portion of the testimony and let the attorneys decide whether or not they are going to raise a hearsay objection. If no objection is forthcoming, I will signal the witness to continue with the testimony. If one is raised, I signal the witness to stop answering.
Now, why would there not be an objection? Because the hearsay rule has at least 23 specific exceptions. If something is offered “not for the truth of the matter,” the hearsay rule may not apply, even if it sounds like hearsay. There are also specific circumstances, such as the admissibility of co-conspirator statements in criminal matters, or prior inconsistent statements made by the witness outside of the courtroom that may be used to impeach a witness and fall within the hearsay exceptions. Since we are not attorneys, we cannot know for sure when something that sounds like hearsay may, in fact, be admitted. This is a high skill in discourse analysis that interpreters would benefit from and would do well to develop because it could minimize witness responses that must not be interpreted under the rules of evidence.
There are also rules about leading questions, which are those questions phrased in such a way that they already suggest an answer, rather than being open questions. Under Rule 611(c), leading questions are not allowed during the direct examination of a witness, except in limited circumstances to help move the testimony along. However, they are allowed on cross-examination or when examining a hostile witness, an adverse party, or a witness identified with an adverse party. Once more, we can’t always anticipate when an objection may be raised or what the judge’s ruling will be, but if you know how to recognize a leading question, you can skip a beat before rendering it for the witness. This strategy will also avoid having foreign language testimony that never gets interpreted because an objection has been raised and sustained.
One final suggestion about expert witnesses. Rule 702 allows a witness who is qualified as an expert by knowledge, skill, experience, training, or education to give opinions when they testify on the basis of their scientific, technical, or other specialized knowledge. These witnesses are meant to assist the court and the triers of fact in understanding the evidence. The rule for expert witnesses was applicable to interpreters prior to 2011, when the Federal Rules of Evidence were amended. Nevertheless, it is the interpreter’s specialized knowledge of languages that allows the court and the triers of facts to understand evidence provided by LEP witnesses. To that extent, interpreters should pay special attention to their education, training, experience, professional credentials, professional affiliations, and all other qualifications that make someone an expert in any given field.
To summarize, questions and answers that do not get interpreted because an objection has been raised and sustained should never be interpreted. If you learn how to recognize certain questions or answers that are likely to raise objections, develop strategies to minimize having questions posed that the witness will never hear, or foreign language testimony that will never be interpreted for the record.
Janis Palma has been a federally certified English<>Spanish judiciary interpreter since 1981. Her experience includes conference work in the private sector and seminar interpreting for the U.S. State Department. She has been a consultant for various higher education institutions, professional associations, and government agencies on judiciary interpreting and translating issues. She worked as an independent contractor for over twenty years in federal, state, and immigration courts around the U.S. before taking a full-time job. Janis joined the U.S. District Courts in Puerto Rico as a staff interpreter in April 2002 and retired in 2017. She now lives in San Antonio, Texas, embracing the joys of being a grandmother. She also enjoys volunteering for her professional associations, has been on the SSTI and TAJIT Boards, and is currently the past Chair of the NAJIT Board of Directors. Contact: palmajanis88@gmail.com
Main photo (cropped) “Microcosm of London Plate 042 – Guildhall, Court of King’s Bench” from “Guildhall” in The Microcosm of London or London in Miniature, Volume II, by William Henry Pyne and William Combe (1904) [1809], London: Methuen and Company, Plate 42, retrieved on 13 July 2011. Painting by Thomas Rowlandson (1756–1827) and Augustus Charles Pugin (1762–1832) (after) John Bluck (fl. 1791–1819), Joseph Constantine Stadler (fl. 1780–1812), Thomas Sutherland (1785–1838), J. Hill, and Harraden (aquatint engravers). Painting in the public domain. Digital image taken from Wikimedia Commons. Body photo “Scientology anti-SLAPP hearing 3 Feb 2014 039” by Michael at flickr, under the CC BY 2.0 license.
I *do* think that not interpreting something for the benefit of the LEP fails the LEP.
Similarly, that trying to anticipate objections by interpreting certain portions of an answer before other portions puts the LEP at an additional disadvantage compare to English-speaking witnesses, who have many more opportunities to voice disqualifiable statements than LEPs.
The judge may decide, based on the rules of evidence, that certain statements should not be on the record and/or should be disregarded by the jury, but it is not our job to preempt such decisions by preventing such statements from being uttered to begin with, since we wouldn’t do that with English-speaking witnesses either.
Therefore, quite on the contrary, in every deposition and in most court cases, I ask attorneys just to signal that they intend to object, and wait with the actual objections until I am done interpreting the question, *even if only* because I might not remember the exact wording of the question by the time counsel are done arguing about the objection, and would then have to ask for the question to be repeated, which is then followed by a repeat of the objection, etc. When I interpret it goes like this:
– Counsel asks question;
– Opposing counsel signals objection;
– Interpreter interprets question and adds: “but please, don’t answer yet”;
– Opposing counsel voices objection;
– Counsel argue, judge rules;
[- Interpreter: “you may answer”];
[- Witness responds];
[- Interpreter interprets the response];
– Counsel asks next question.
Thank you for your comments, Daniel. By no means am I suggesting that you change your methods. I am merely offering some insight into the rules of evidence that do have a bearing on the work we do in legal settings. If they are useful, great! If they are not useful, you can simply disregard them.
As to the “similarly situated” paradigm, I believe interpreters take that to an extreme. An English speaker may hear the question but is not going to be able to answer it if an objection is sustained. Interpreting a question that is not going to be answered may be even more confusing fo the non-English-speaker, but I do get your point about forgetting the question after the objection has been resolved. Of course, you can always use your notes to help you remember the question, even after an objection has been raised, attorneys argue the point, and the judge has ruled.
Likewise, the answer would not be on the record if it had been in English because the witness would have been interrupted and prevented from expanding on his/her answer. “Similarly situated” does not mean that we disregard the very real differences between English-speaking and non-English-speaking persons, as if those differences did not exist. “The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct. 2382, 2394, 72 L. Ed. 2d 786 (1982).
I’m not sure I would be saying “but please, don’t answer yet” or “you may answer” if you’re not interpreting an English speaker in the courtroom who is saying those words. Wouldn’t that be stepping out of the role of interpreter?
(Unless I’m misunderstanding your comment.”
Fortunately and as always, Janis is a leader in the field of legal interpreting and always manages to turn linguistic theory into practical solutions. to the benefit of her colleagues. Thanks a million Janis for these wonderful examples!
Thank you, Georganne.
I appreciate Janis’ proposal of learning the Federal Rules of Evidence (even the rules of civil procedure). This is very helpful to understand the procedures we are normally involved with. However, I agree with Daniel, and I follow the same procedure he described as much as possible. Everybody in that room who is an English speaker heard and understood the question, except the LEP. Isn’t our job to put the LEP on the same footing as an English-speaking person?
So here is my confusion in all of this. I learned (perhaps in error?) that the interpreter’s job in the hearing or deposition is to put the LEP on the same level as an English speaker in that everything an English speaker would hear and understand the LEP should have interpreted for him or her. So if a question gets asked or partially asked and then there is an objection, an English speaker would have heard whatever part of that question was spoken. Should not the LEP get to hear that same portion up until the objection, just like an English speaker?
I hear what you’re saying, Chris, and the problem is that the people who set those guidelines had the best of intentions but were (sadly) a bit misguided. You, as an interpreter, will never be able to “put the LEP on the same level as an English speaker.” It is a linguistic and cultural impossibility. Interpreting “everything the English speaker would hear” does not make things “equal” for the LEP, because they are only hearing one voice–yours–and that alone is already confusing enough, while the English speaker hears all the different voices of the different speakers. For the LEP it must be like watching a movie in a foreign language with all the dubbing done by a single person who is always out-of-synch. (See my article in Proteus, 2023 Spring Volume, “Three Reasons Why LEP Defendants May Never be Similarly Situated” (p. 7): https://najit.org/proteus_issue/2023-03.)
We need to use our common sense when we are interpreting, rather than follow “rules” that have never factored in the true impact on the LEP’s Sixth Amendment due process rights [see: https://www.law.cornell.edu/constitution/sixth_amendment%5D when a legal proceeding must be understood through an interpreter.
Thankfully, judges presiding over trials have always told me I don’t need to interpret what a witness said before a sustained objection was raised. But I was never really sure that was ethical. Thanks for clarifying!
You are very welcome, Richard.
Instructions to the witnesses go a long way as well. Judges who adhere to best practices help allow for less guesswork on our part.
Thank you for that comment and your question, Edith. I appreciate that you follow the procedure described by Daniel and this is only some additional criteria I offer that you can use when you make strategic decisions on the witness stand or during a deposition. I use the word “strategic” very purposely, because interpreters should not be merely “repeating” everything they hear, but also making strategic delivery decisions along the way (but that’s a different topic altogether.)
To put the LEP “on the same footing as an English-speaking person” does not mean that we completely disregard the logical and common-sense assessment of any given situation. As I explained above, even if the English speaker had been able to hear the question, s/he still would not have been allowed to answer it. Interpreting a question that is not going to be answered, just for the sake of “interpreting everything an English-speaker would hear” can actually confuse the LEP person, in which case you are actually placing them at a disadvantage vis-a-vis the English speaker.
Some interpreters seem to assume that the exchange of information flows equally for the English speaker as it does for the non-English speaker just because there is an interpreter present. The fact is that the mere presence of an interpreter already makes it unequal, and there are many other linguistic and non-linguistic factors that need to be taken into account in this “equal footing” metaphorical paradigm, not just “interpreting everything an English speaker would hear.”
Great insights. Thank you.
This scenario is one reason why I advocate for what I call real-time consecutive – one sentence at a time or even one phrase at a time at natural pauses. (Like in the movie “Bedtime Stories”). The segments are shorter, but so are the pauses, (ping pong). So, it doesn’t sound that unnatural. The jurors hear the answer unfold in real time. They don’t forget what the question was while they sit and wait for the interpreter to hear the answer in a foreign language and then repeat it. They see gestures and facial expressions of the witness almost in sync with the words they’re expressing. The interpreter doesn’t have to make the witness stop during a long answer and wait while the first half of their long response is interpreted and then try to pick up where they left off. There’s less need for notes and there’s fewer chances for memory errors. Plus, objections happen in real time with the words that were just said without jurors hearing things they shouldn’t and without the interpreter running the risk of forgetting testimony that was “put on hold”. I’ve used it, and if you can get into a ping-pong rhythm with your witness it just feels smoother and definitely cleaner for objections.