March 12, 2012 Top Story

Interpreter Must Take Oath to Make True Translation

Failure to swear translator not necessarily a reversible error

Katerina E. Milenkovski

A trial court’s failure to administer an oath to interpreters did not require reversal where there was no prejudice to the defendant. Nonetheless, with an explosion of immigration and other cases requiring interpreters, careful trial lawyers should request that the court take the extra fifteen seconds to “swear the translator” as well as the witness.

In a recent decision the United States Court of Appeals for the Ninth Circuit addressed a situation where the government’s informant in the criminal trial had been placed under oath, but the official translators were not. The defendant argued this violated Federal Rule of Evidence (FRE) 604, but the appellate court held it was not reversible plain error.

At trial, the judge instructed jurors that “[t]here may be Spanish language used during the trial. The evidence you are to consider is only that provided through the official court interpreter. Although some of you may know Spanish, it is . . . important that all jurors consider the same evidence. Therefore, you must accept the English translation and you must disregard any different meaning.”

Two separate court interpreters translated the testimony of a government witness on two different days during the trial. The defendant did object to the fact that neither was ever administered an oath.

Rules Require Interpreters to Be under Oath 

Federal Rule of Evidence 604 requires that an interpreter take an oath or affirmation to make a true translation. Yet, FRE 604 does not indicate when such an oath must be administered, including whether the oath must be administered for each trial.

The Administrative Office of the United States Courts’ Guide to Judiciary Policy notes that “[p]olicies with regard to the oath of interpreters vary from district to district and from judge to judge.” Although some courts administer oaths to interpreters each day, or once for an entire case, others “administer the oath to staff and contract interpreters once, and keep it on file.”

Unlike FRE 603, which requires that witnesses be administered oaths “before testifying,” the court of appeals noted that FRE 604 contains no indication as to how or when interpreters are to be qualified and their oaths administered. “Unlike witnesses, an interpreter’s role is not limited to a specific trial, and there is no apparent reason the oath need be either. In the absence of any requirement that the interpreter’s oath be administered during each new trial, it could not have been plain error for the trial judge to have failed to do so.”

Further, the court held that even if the interpreters were never sworn in—and there was nothing in the record to indicate that they had been—such error did not affect the defendant’s substantial rights as is required for reversal on plain error review. Specifically, the defendant had shown no prejudice as a result of the error. He didn’t challenge the accuracy of the translation or the lawfulness of the translator’s conduct.

“Is Rule 604 entirely meaningless?” asks Stacey F. Gottlieb, Phoenix, cochair of the ABA Section of Litigation’s Criminal Litigation Committee. “Are the interests that the rule was intended to protect entirely meaningless? I realize in this case no one argued prejudice, but aren’t we more concerned with systemic risk in saying the oath doesn’t matter?” she says. “We seem to hold the oath sacred when it comes to witnesses. I don’t see it being any less important in trying to ensure the reliability of what is being interpreted.”

Oath Emphasizes Importance of Interpreter’s Function

“I have visited more than half of the districts in the country,” notes Judge Ruben Castillo, Chicago, cochair of the ABA Section of Litigation’s Trial Practice Committee. “In San Jose, where this trial took place, they are probably not too busy to swear in the interpreter. It was probably just an oversight,” he says.

“But in courts along the borders, they are overwhelmed with cases necessitating interpreters. They are so busy that they probably can’t take the time. In those cases, I would hope the courts do a better job of establishing a routine practice of getting the oaths of interpreters on file.”

“I happen to be a Spanish speaker,” Castillo adds, “and I’ve seen misinterpretations occur.” While the rigorous federal certification process for interpreters should create a presumption of competency, the judge notes that “under the pressure of instantaneous interpretation, especially in cases involving a lot of slang, like drug cases, mistakes can occur. When under oath, most people take the job more seriously.”

No Prejudice to the Defendant

“I think what swayed the court to uphold the conviction in this case is that there was no indication of misinterpretation. Rather, this was a defendant trying to play a get out of jail free card. The lack of oath had nothing to do with the outcome of the case,” observes Castillo.

“Nevertheless, the best of all practices would be to swear in each interpreter each time. It probably only takes 10 to 15 seconds and I think it adds to the solemnity and importance of what they are there to do.”

The Defendant’s Right to Confront Witnesses Not Impaired

The failure to administer oaths to the interpreters, together with the trial court’s instruction that the jury could only consider the English translation presented by the interpreters, did not result in a Confrontation Clause violation either, held the court.

The Sixth Amendment guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Because the defendant had the opportunity to confront the actual adverse witness, whose testimony the interpreters merely translated, the Ninth Circuit held that there was no Confrontation Clause violation.

Judge Castillo sees where interpretation without an oath could cause a confrontation issue. “Immigration is probably the biggest growth area in the federal courts right now, and easily 80 [percent] of immigration cases involve a court interpreter. The defendants in those cases would have a hard time establishing prejudice if there was a misinterpretation, as the trial transcript only contains the English translation. Asking the defendant to prove the prejudice would be virtually impossible, unless you had recorded the testimony as well.”

“I would be an advocate of having the foreign language testimony recorded,” suggests Gottlieb. “How else could you ever say that an interpreter got it right? It is so easy these days to have that kind of backup. Why would you want to take the chance of an interpreter making a significant mistake? And what if you have an interpreter not under oath that intentionally misinterprets, wouldn’t you want them to be subject to penalties for perjury, based on fact that they have taken an oath to interpret accurately?” queries Gottlieb.

Judge Castillo suggested that perhaps the ABA could take a closer look at this and could push for uniformity in the federal courts rather than letting all 94 districts do it differently.

Katerina E. Milenkovski is an associate editor for Litigation News.

Keywords: Ninth Circuit, interpreter, FRE 604, Rule 604, Confrontation Clause, reversible plain error, oath

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