What did he say?
Mistranslations in the court
BY RYAN J WINTER, PHD, MLS • FLORIDA INTERNATIONAL UNIVERSITY
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.
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.
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. n
“Judicial Notebook” is a project of APA’s Div. 9 (Society for the
Psychological Study of Social Issues).