In early January, Canadian Superior Court Justice Anthony Hill declared a mistrial in the sexual assault case of defendant Vishnu Dutt Sharma, a Hindi-speaking Indian citizen working in Canada under a work visa. The reason for the mistrial? The court interpreter mistranslated phrases in the victim's testimony, such as translating "sexual assault" as "physical assault," "genital area" as "between the legs" and "two days" as "a couple of weeks." The judge deemed the translations poor and found them prejudicial to the defendant as they denied him a "full linguistic presence at his trial."
Similar mistrials have occurred in the United States. In California, for example, Judge John H. Tiernan dismissed homicide charges against Cathy Mendoza in 2010 when he noticed certified court translators mistranslating the testimony of Spanish-speaking witnesses. "Justice cannot be done if the jury does not have the proper information in front of them," Tiernan said, noting that translating testimony is mentally taxing for interpreters.
Alarmingly, most interpretation errors go unnoticed or are deemed too benign on appeal to have altered a trial's outcome. But today's legal system needs to take a closer look at this issue, particularly since Spanish is the primary language of roughly 11 percent of the U.S. population, according to 2009 data from the American Community Survey census.
One courtroom solution is to require all U.S. jurors to be fluent in English, thus ensuring that the decision-makers who are charged with rendering a verdict understand the courtroom evidence and testimony. However, it is not possible to ensure that trial witnesses and defendants are English speakers. Instead, courts must rely on interpreters to translate their testimony. Unfortunately, interpreters face many obstacles. First, not only must they translate accurately and quickly, they must do so while attempting to mimic the intonation and inflections of the original speaker, verbal characteristics that might be just as important in adequately imparting the intent of the testimony as a verbatim rendering of the witness's actual words. In addition, the usual hemming and hawing that witnesses use in their testimony ("um," "ah," "well") may convey damaging new information. For example, Peter Uiberall, chief interpreter of the Nuremburg trials, noticed multiple instances of the word "yes" in Nuremburg transcripts, and later noted that interpreters had often translated the German word "ja" as "yes." Although "ja" does mean "yes," it is often used as a placeholder or "discourse marker" in German conversations, equivalent to the American "um" or "well." The word "yes," of course, can redefine the meaning of a witness's testimony. Finally, idioms, slang and colloquialisms may not be amenable to accurate translations: Imagine literally interpreting the phrase "it's raining cats and dogs" and having your true meaning come across.
So what effect do translations have on trials? Attorneys inevitably lose some control over the pacing of a witness's examination, due in part to extra time needed to convey the question and responses through a middle man. Although mistrials could result from translators who merely summarize questions and responses rather than giving verbatim reports, even accurate translations can lose some of the urgency or "bombshell" revelations that might come from the original source, and thus may lose their meaning when they finally reach the ears of the juror.
What about blatant errors? Research is starting to emerge in this area. In our own lab, we have done preliminary research that suggests bilingual jurors rely on the original Spanish testimony, rather than the translator, though their English-only counterparts have no such luxury. Additional work in our lab is focusing on the role of inadmissible evidence introduced through Spanish testimony.
If such inadmissible evidence is not translated, how might it affect bilingual jurors compared to their English-only colleagues? Though answers to this question are forthcoming, one thing is certain: As the U.S. melting pot continues, more research is needed to determine what impact non-English-speaking people will have on the legal system.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).