THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 3 - CHAPTER 16
Go to Volume 3 Table of Contents - Go to Chapter 16 Table of Contents

16.16 Interpreters

    16.16.1 Jurors To Be Guided By Official English Translation/Interpretation
    16.16.2 Use Of Interpreter By Defendant: Cautionary Instruction
    16.16.3 Defendant's Right To Interpreter: Federal Constitutional Grounds
    16.16.4 Defendant's Right to Simultaneous Translation By Interpreter
    16.16.5 Defendant Has Right To Testify Through Interpreter Without First Trying To Speak English Under Oath In Front Of The Jury
    16.16.6 Interpreter's Embellishment On Testimony Of Witness Is Improper
    16.16.7 Use of Interpreter By Witness: Testimony Must Not Be Treated Differently
    16.16.8 Bilingual Jurors: Must Only Consider Official English Translation/Interpretation
    16.16.9 Bilingual Jurors: Excusal Of Juror Based On Knowledge Of Language Being Interpreted
    16.16.10 Bilingual Jurors: A Juror's Perceived Shortcomings In Translation Should Be Discretely Communicated To The Judge Through Written Messages
    16.16.11 Interpreter In Juryroom
    16.16.12 Court Must Determine Need For Interpreter When There Is Evidence Of Potential Language Difficulty

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 3 - CHAPTER 16

RATIONALE: If jurors are free to act as their own translators, even in part, then there is no assurance that the jury relied on a correct translation of the testimony.

POINTS AND AUTHORITIES: When a recording made in a foreign language has been translated an instruction informing the jurors to only consider the English transcript may be necessary. (See U.S. v. Pion (1st Cir, 1994) 25 F3d 18, 21; see also U.S. v. Valencia (5th Cir. 1992) 957 F2d 1189, 1194-95; Commonwealth v. Festa (MA 1976) 341 NE2d 276, 283; U.S. v. Carrera (E.D.N.Y. 1998) WL 903467, 2 ["when foreign language tapes are transcribed, jurors should be instructed that the transcript of the English translation, not the tape, controls"].) Whenever an official, court-approved translator or interpreter is used there is a danger that jurors who have some facility in the foreign language at issue may rely on their own knowledge of the language rather than the official translation. (See e.g., U.S. v. Franco (9th Cir. 1998) 136 F3d 622, 626.) Therefore, an instruction precluding the jurors from relying on their own translation should be considered. (See U.S. v. Fuentes-Montijo (9th Cir. 1995) 68 F3d 352, 254-55.)

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

    See also NCJIC 24.2.7.3 [Transcript Of Foreign Language Recording].

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

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 6.7, 7.1].

See also A Manual On Jury Trial Procedures [3.7A. Interpreters: Use And Competency].

See also A Manual On Jury Trial Procedures [3.7F. Interpreters: Practical Suggestions].

See also generally, NCJIC 305.9.10 [Interpreters].

See 9th Circuit Model Jury Instructions - Criminal 1.13.

See also 9th Circuit Model Jury Instructions - Criminal 3.20. 

    Languages other than English may be used during this trial. The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know the non-English language used, it is important that all jurors consider the same evidence. Therefore, you must base your decision on the evidence presented in the English [interpretation] [translation]. You must not rely in any way upon your own interpretation or translation of the witness' words.

[9TH CIRCUIT MODEL JURY INSTRUCTIONS - CRIMINAL 1.13 [Jury To Be Guided By Official English Translation/Interpretation] 3.20 [Jury To Be Guided By Official English Translation/Interpretation] (2000); U.S. v. Fuentes-Montijo (9th Cir. 1995) 68 F3d 352, 254-55.]

    You should not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcripts should be based on the evidence introduced in the trial.

[7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.18 [Foreign Language Recordings/Transcripts In English] ¶ 2, sent. 4 (1999).]

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 3 - CHAPTER 16

RATIONALE: Jurors may draw an adverse inference from the fact that defendant has testified through an interpreter.

POINTS AND AUTHORITIES: It is well recognized that a defendant who does not speak English may use a qualified interpreter to translate his or her testimony and/or to communicate with counsel and the court. (See e.g., State v. Thien Duc Le (TN 1987) 743 SW2d 199, 202; see also Saintjour v. State (FL 1988) 534 So2d 874 [error to disparage individuals for failing to learn English].) When this occurs it may be appropriate to caution the jury not to draw any adverse inference against the defendant due to his or her use of an interpreter.

    See also NCJIC 16.16.7 [Use of Interpreter By Witness: Testimony Must Not Be Treated Differently].

    See also NCJIC 16.16.3 [Defendant's Right To Interpreter: Federal Constitutional Grounds].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 1.4; 2.2; 7.5].

PRACTICE NOTE: The defendant has the right to an interpreter during the reading of the instructions to the jury. (See e.g., People v. Chavez (CA 1991) 231 CA3d 1471, 1477 [283 CR 71].)

See also A Manual On Jury Trial Procedures [3.7A. Interpreters: Use And Competency].

See also A Manual On Jury Trial Procedures [3.7F. Interpreters: Practical Suggestions].

See also generally, NCJIC 305.9.10 [Interpreters].

    I have determined that the defendants should be allowed to testify through an interpreter. You must not consider for any purpose the fact that the defendant used an interpreter when [he] [she] testified. Specifically, you must not consider defendant’s use of an interpreter.  Furthermore, you must not be biased against the defendant because of [his] [her] inability to speak English.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 3 - CHAPTER 16

PRACTICE NOTE: The confrontation clause of the Sixth Amendment requires that the defendant be capable of understanding the testimony of the witnesses. (See e.g., Chao v. State (DE 1992) 604 A2d 1351, 1362; see also Cantu v. State (TX 1986) 716 SW2d 688, 689; Nguyen v. State (TX 1989) 774 SW2d 348, 350.) Failure to provide a means for defendant to understand the nature of the charges, testimony of the witnesses, and to communicate to the court, through appointment of interpreter, if necessary, would violate the defendant's constitutional rights. (See e.g., State v. Thien Duc Le (TN 1987) 743 SW2d 199, 202; see also U.S. v. Yee Soon Shin (9th Cir. 1992) 953 F2d 559, 561 [purpose of interpreter for accused is to ensure the constitutional guarantee to confrontation].) Accordingly, the trial court is obligated to inquire into the defendant’s need for an interpreter and his or her ability to pay for one when such inquiry is warranted. (Giraldo-Rincon v. Dugger (N.D. Fla. 1989) 707 FSupp 504, 507; see also Ko v. U.S. (DC App. 1998) 722 A2d 830, 834 [defendant, whose fluency in English is so impaired that it interferes with his right to confrontation or his capacity, as a witness, to understand or respond to questions, has a constitutional right to an interpreter].)

    Moreover, the Constitutional right to an interpreter may not be waived by mere acquiescence or nonverbal conduct on the part of accused. (State v. Kounelis (NJ 1992) 609 A2d 1310, 1314.) Appointment of interpreter is within district court’s discretion as a constitutional matter. (U.S. v. Yee Soon Shin (9th Cir. 1992) 953 F2d 559, 561.) The purpose of providing an interpreter for the accused is to ensure the constitutional guarantee of right to confront witnesses.)

    See NCJIC 300.26.1 [Denial Of Confrontation Or Cross Examination As Violation Of 6th Amendment].

CAVEAT: Federal procedures for interpreters as set forth in statute are applicable to federal proceedings but are neither constitutional in nature nor required to be followed in state courts. (Costa v. Williams (S.D. NY 1993) 830 FSupp 223, 225.)

See also A Manual On Jury Trial Procedures [3.7A. Interpreters: Use And Competency].

See also A Manual On Jury Trial Procedures [3.7F. Interpreters: Practical Suggestions].

See also generally, NCJIC 305.9.10 [Interpreters].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 3 - CHAPTER 16

PRACTICE NOTE: Indigent defendants who cannot speak or understand English have the right to have their proceedings simultaneously translated for effective participation. (Mejia v. State (IN 1998) 702 NE2d 794, 797; see also Molina v. State (IN 1993) 621 NE2d 1137, 1139-40; Martinez Chavez v. State (IN 1989) 534 NE2d 731, 736; Giraldo-Rincon v. Dugger (N.D. Fla. 1989) 707 FSupp 504, 506.)

See also A Manual On Jury Trial Procedures [3.7A. Interpreters: Use And Competency].

See also A Manual On Jury Trial Procedures [3.7F. Interpreters: Practical Suggestions].

See also generally, NCJIC 305.9.10 [Interpreters].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 3 - CHAPTER 16

PRACTICE NOTE: Where the defendant requests an interpreter based on his attorney’s uncontradicted statement that the defendant could not express himself in English, it was held to be reversible error to deny the interpreter until the defendant first tried to testify before the jury under oath in English. (U.S. v. Mayans (9th Cir. 1994) 17 F3d 1174, 1180-81.)

See also A Manual On Jury Trial Procedures [3.7A. Interpreters: Use And Competency].

See also A Manual On Jury Trial Procedures [3.7F. Interpreters: Practical Suggestions].

See also generally, NCJIC 305.9.10 [Interpreters].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 3 - CHAPTER 16

PRACTICE NOTE: A court appointed interpreter should translate the question exactly without any additional or supplementary remarks of his or her own and the interpreter should translate the answer of the witness in the first person, neither editing nor adding to the witness's words. (See e.g., U.S. v. Gomez (11th Cir. 1990) 908 F2d 809, 811; see also State v. McLellan (NC 1982) 286 SE2d 873, 875.) Even if an answer is nonresponsive, the interpreter should give it and allow judge to pass on its admissibility, since interpreter's sole function is to translate. (Commonwealth v. Festa (MA 1976) 341 NE2d 276, 283.)

    The failure of the interpreter to accurately translate the questions to, and answers from, a witness may implicate the defendant's federal constitutional rights (6th and 14th Amendments) to confrontation. (See People v. Cunningham (MI 1996) 546 NW2d 715, 716 [interpreter's inadequate translation of the complainant's cross-examination during criminal sexual conduct prosecution deprived defendant of his constitutional right to confront witness against him, insofar as interpreter had untranslated conversations with complainant, summarized some responses, and directly responded to some questions on basis of her understanding of complainant's prior testimony].)

See also A Manual On Jury Trial Procedures [3.7A. Interpreters: Use And Competency].

See also A Manual On Jury Trial Procedures [3.7F. Interpreters: Practical Suggestions].

See also generally, NCJIC 305.9.10 [Interpreters].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 16

RATIONALE: Without a cautionary instruction jurors may tend to give less weight to a witness who speaks through an interpreter.

POINTS AND AUTHORITIES: A witness should not be considered in a different light simply because he or she cannot speak English. (See e.g., People v. Bragg (IL 1979) 386 NE2d 485, 491 [failure to provide an interpreter for defense witness who was not understandable, comprehensible or intelligible deprived defendant of his Constitutional rights].) Accordingly, when a witness does speak through an interpreter, it may be appropriate to caution the jury against being adversely influenced by the inability of the witness to speak English.

    See also NCJIC 16.16.2 [Use Of Interpreter By Defendant: Cautionary Instruction].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.4; 7.1; 7.5].

See also A Manual On Jury Trial Procedures [3.7A. Interpreters: Use And Competency].

See also A Manual On Jury Trial Procedures [3.7F. Interpreters: Practical Suggestions].

See also generally, NCJIC 305.9.10 [Interpreters].

    A person who cannot speak English fluently has a right to use an interpreter even if they may be able to speak some English.  Do not allow your evaluation of translated testimony to be influenced by the witness' ability or lack of ability to speak English.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 16

    16.16.8    Bilingual Jurors: Must Only Consider Official English Translation/Interpretation

    See NCJIC 16.16.1 [Jurors To Be Guided By Official English Translation/Interpretation].

See also generally, NCJIC 305.9.10 [Interpreters].

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 16

PRACTICE NOTE: "Neither party has the right to have a juror excused solely because that juror understands the language of a witness. However, in certain circumstances the judge in his discretion may decide whether it is appropriate to excuse such a juror. For example, this action may be desirable on motion of the defendant in a criminal matter in which the progress of the trial will not be interrupted by the removal of the juror, sufficient alternate jurors have been empaneled, and interpreted testimony constitutes a major part of the case. However, the decision so to excuse a juror is within the sound discretion of the trial judge, and failure to do so will rarely if ever provide grounds for reversal." (Commonwealth v. Festa (MA 1976) 341 NE2d 276, 283-84; see also Hernandez v. New York (1991) 500 US 352, 370-71 [111 SCt 1859; 114 LEd2d 395]; Diaz v. State (DE 1999) 743 A2d 1166, 1176 [bilingual jurors "must be questioned individually regarding their ability to treat their own foreign language translation as inadmissible evidence; to base their judgment solely upon the official interpreter’s translation that is admitted into evidence; and to refrain from discussing inadmissible evidence (their own translation) with other jurors"].)

    If a juror is unable to avoid relying on his or her knowledge of the language being translated this may be a basis for excusing the juror for cause. (Ibid.)

See also A Manual On Jury Trial Procedures [3.7A. Interpreters: Use And Competency].

See also A Manual On Jury Trial Procedures [3.7E. Interpreters: Cautionary Instruction To Bilingual Jurors].

See also A Manual On Jury Trial Procedures [3.7F. Interpreters: Practical Suggestions].

See also generally, NCJIC 305.9.10 [Interpreters].

See 9th Circuit Model Jury Instructions - Criminal 2.9.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 16

PRACTICE NOTE: In Hernandez v. New York (1991) 500 US 352, 364 [111 SCt 1859; 114 LEd2d 395], Justice Kennedy stated "Spanish-speaking jurors could be permitted to advise the judge in a discreet way of any concerns with the translation during the course of trial."  (Ibid.; see also Diaz v. State (DE 1999) 743 A2d 1166.)

See also A Manual On Jury Trial Procedures [3.7A. Interpreters: Use And Competency].

See also A Manual On Jury Trial Procedures [3.7E. Interpreters: Cautionary Instruction To Bilingual Jurors].

See also A Manual On Jury Trial Procedures [3.7F. Interpreters: Practical Suggestions].

See also generally, NCJIC 305.9.10 [Interpreters].

See 9th Circuit Model Jury Instructions - Criminal 2.9.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 3 - CHAPTER 16

RATIONALE: Jurors may only deliberate among themselves based upon the evidence presented at trial. Therefore, in the rare case where an interpreter may have to go into the juryroom, all involved must understand that the interpreter should not make any statement, act, gesture or communication beyond the scope of the translation.

POINTS AND AUTHORITIES: In unusual circumstances, such as a case involving an interpreter for a juror (e.g., where the juror is deaf), interpreters may be present in the juryroom during deliberations.  In such a situation, the interpreter should be instructed not to participate in the deliberations in any manner that could influence the jurors. (See U.S. v. Dempsey (10th Cir. 1987) 830 F2d 1084, 1092.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.3; 7.5].

See Hollander & Bergman, Everytrial Criminal Defense Resource Book 2:17 (West, 1999).

See also A Manual On Jury Trial Procedures [3.7A. Interpreters: Use And Competency].

See also A Manual On Jury Trial Procedures [3.7E. Interpreters: Cautionary Instruction To Bilingual Jurors].

See also A Manual On Jury Trial Procedures [3.7F. Interpreters: Practical Suggestions].

See also generally, NCJIC 305.9.10 [Interpreters].

    An interpreter has been appointed by the court in order to assist juror _______, so that [he] [she] may effectively communicate with you. You may only consider the translation itself. Any statement, act, gesture or communication made by the interpreter that is beyond the scope of the translation may not be considered.

    You are being appointed by this court in order to interpret for juror _______ so that [he] [she] may effectively communicate with the other jurors. You may not in any manner by act, gesture or comment, communicate anything that is not part of the interpretation itself.

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information