A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Three: The Trial Phase

3.7     Interpreters
          A. Use and Competency
          B. Translations: Disputed Documents
          C. Interpreter for Jurors
          D. Necessity of Oath
          E. Cautionary Instruction to Bilingual Jurors    

A MANUAL OF JURY TRIAL PROCEDURES - 2004

A.  Interpreters: Use And Competency

NCJIC Materials Related To This Issues:

NCJIC 16.16 [Interpreters]

1. Appointment of Interpreter

Rule 43(f), Fed. R. Civ. P., provides for the appointment of a court interpreter, with the determination of interpreter's fees and assessment of fees as costs in a civil action.

It is suggested that when an interpreter is presented by a party to a civil case, the court determine if the interpreter is qualified, and, if so, appoint that person as the court's interpreter in order to control fees and assess costs if appropriate under Rule 43(f). If the suggested interpreter is not acceptable, the court should appoint one of its own choosing pursuant to Rule 43(f).

2. Right of a Criminal Defendant to an Interpreter

A defendant in a criminal case has a statutory right to a qualified court-appointed interpreter when his or her comprehension of the proceedings or ability to communicate with counsel is impaired. 28 USC 1827(d)(1).

3. Competence of Interpreter

Any determination as to the competence of an interpreter rests with the trial judge. In making that determination, the court may wish to consider whether the interpreter is federally certified by the Administrative Office of the U.S. Courts. During trial, counsel and the court should be informed of any difficulty with interpreters. The judge must then decide whether to retain or replace the interpreter. See United States v. Anguloa, 598 F.2d 1182 (9th Cir. 1979).

Complaints directed toward an interpreter by a party may require that the trial court conduct an evidentiary hearing. Chacon v. Wood, 36 F.3d 1459, 1465 (9th Cir. 1994), superseded by statute on other grounds as recognized in Morris v. Woodford, 229 F.3d 775 (9th Cir. 2000).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

B.  Interpreters: Translations: Disputed Documents

NCJIC Materials Related To This Issues:

NCJIC 25.9.4 [Foreign Language Recording]

Where the translation of a document is disputed, qualified translators may give their respective translations, and explain their opinions about what the words mean, and the jury will decide which translation is appropriate.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

C.  Interpreters: Interpreter For Jurors

NCJIC Materials Related To This Issues:

NCJIC 16.16.11 [Interpreter In Juryroom]

In the case of a deaf juror, it may be appropriate to permit use of an interpreter. In United States v. Dempsey, 830 F.2d 1084 (10th Cir. 1987), the Tenth Circuit ruled that a juror's deafness did not disqualify the juror from service, nor did the interpreter's presence during jury deliberations deprive defendant of a fair and impartial trial.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

D.  Interpreters: Necessity Of Oath

It is necessary for the district court to have an oath or affirmation administered to an interpreter who will be translating the testimony of a witness. FRE 604; United States v. Armijo, 5 F.3d 1229, 1235 (9th Cir. 1993); United States v. Taren- Palma, 997 F.2d 525, 532 (9th Cir. 1993), cert. denied, 511 U.S. 1071 (1994).

Some districts fulfill this obligation by having all interpreters, at the outset of their service as a federally certified court interpreter, sign a written affidavit swearing or affirming to translate all proceedings truthfully and accurately.

A MANUAL OF JURY TRIAL PROCEDURES - 2004

E.  Interpreters: Cautionary Instruction To Bilingual Jurors

NCJIC Materials Related To This Issues:

NCJIC 16.16.9 [Excusal Of Juror Based On Knowledge Of Language Being Interpreted]

NCJIC 16.16.10 [Bilingual Jurors: A Juror's Perceived Shortcomings In Translation Should Be Discretely Communicated To The Judge Through Written Messages]

Instruction 1.16 of the NINTH CIRCUIT MANUAL OF MODEL JURY INSTRUCTIONSBCIVIL (2001) is a model instruction regarding the obligation of bilingual jurors to accept the translation given by the federally certified court interpreter. See also 9TH CIR. CRIM. JURY INSTR. 1.13 (2003).

Practical Suggestions

Interpreters at Trial

1. Permit counsel to confer with defendant with assistance of interpreter. United States v. Lim, 794 F.2d 469, 471 (9th Cir.), cert. denied, 479 U.S. 937 (1986).

2. Introduce interpreter(s) to the jury, explaining the function performed and the high proficiency required of federal court interpreter, and explore with the venire panel whether any are biased against the defendant because of the defendant's need for an interpreter.

3. In multi-defendant criminal cases, a single interpreter using electronic equipment with additional headsets may be considered.