Any attorney or consultant who has prepped their fair share of witnesses understands that different witnesses present different challenges. Those challenges can depend on things as simple as their appearance, their willingness to make eye contact, choice of words, and even their (lack of) sense of humor. For some situations, there are nuanced challenges that require a refined approach to preparing your witness. One of those challenges is preparing a witness who does not speak English very well, also known as having Limited English Proficiency (LEP).
We have worked closely with attorneys preparing LEP witnesses and have observed LEP witnesses testifying in court. Our experiences indicate that any problems with a witness’s testimony can be amplified when the witnesses has LEP. For example, we were asked by a client to observe an antitrust trial in the Eastern District of New York. The plaintiffs’ first witness worked for one of the defendants in the case and required a Mandarin translator. When the witness took the stand, the plaintiffs’ attorney handed the witness a large binder of memos that the witness had drafted during the alleged price-fixing meetings. When the attorney asked questions about the memos, the witness repeatedly responded, “I don’t remember.” In fact, the witness said, “I don’t remember,” (in Mandarin) so many times that everyone in the courtroom knew, within the first 15 minutes of his testimony, how to say, “I don’t remember” in Mandarin. At one point, the attorney asked the witness to review specific sections of the memos that the witness had written to assist in his recall. The witness then said, through the translator, that the memos did not refresh his memory. Later on, when the witness was asked if he was aware that there was a lawsuit pending when he destroyed his computer that contained notes from those alleged price-fixing meetings, he simply stated that there were no rules about discarding computers at his company. Many of the jurors were overtly skeptical of this witness’s testimony, and showed their skepticism with a raised eyebrow or a gentle nod of their head. The jurors’ skepticism would have likely been augmented if they, like us, heard the witness speaking in English during a break in the trial.
In this article, we discuss our recommendations for prepping witnesses who have LEP. These witnesses may speak some or no English and require an interpreter in court or other legal settings.[1] These recommendations are specific to those cases in which an interpreter is needed. We provide information about the logistics of using an interpreter, the process of testifying through an interpreter, and the dynamics that develop in cases with LEP witnesses.
The Logistics of Using an Interpreter
The first and most simple decision you need to make in a case with an LEP witness is if an interpreter is needed. This decision can be made by the witness or by the attorney who plans to call the witness to testify. Begin by asking the witness if they would like to have an interpreter present. If the witness thinks that they need an interpreter, you should probably get one. Having one is not only about clarity and accuracy; it is also about quelling the witness’s anxiety and frustration about their role in the pending litigation. As soon as you are made aware that you will have a testifying witness who is LEP and requires an interpreter, get an interpreter to help with preparing your witness pre-trial.
The American Bar Association website has resources that offer some tips about conducting litigation with an LEP witness. To assess whether an interpreter is needed, you should
- Ask open-ended questions that require complete or near complete sentences;
- Ask opinion questions or questions where the answer would be unique to the person answering; and
- Ask questions with no ‘right’ answer.
If you and the witness are satisfied with their responses, you may not need an interpreter.
Courts in California are required to make interpreters available if a witness or party to the case needs an interpreter. The following language from the California Code of Evidence articulates when an interpreter should be used at trial:
“When a witness is incapable of understanding the English language or is incapable of expressing himself or herself in the English language so as to be understood directly by counsel, court, and jury, an interpreter whom the witness can understand and who can understand the witness shall be sworn to interpret for the witness.” (CAL CODE OF EVIDENCE, § 752)
The Process of Using an Interpreter
For attorneys and consultants who work with witnesses, it is important to keep in mind how the dynamic of working with LEP witnesses differs from the dynamic of working with witnesses who do not need translators. The two charts below demonstrate how the use of interpreters changes the dynamic of testifying. In the Traditional Witness Dynamic, interpreters do not act as intermediaries between what the witness says, and what the jurors hear. In the LEP Witness Dynamic, the translation of the attorney’s question and the translation of the witness’s response become part of the path of communication to the jurors. While jurors may not understand the literal meaning of phrases and sentences spoken in a different language, they still assess the witness’s demeanor when answering questions. The LEP witness’s voice and response style are still relevant for the jurors’ assessment of the witness’s credibility.
If there are depositions, make sure the witness has ample time to understand the process of testifying through an interpreter before the first deposition. Slip-ups and misunderstandings in depositions can lead to inconsistencies in testimony, which may leave the witness exposed to impeachment at trial. Trying to correct a misunderstanding through an interpreter in court, with the jury present, will likely be a lot harder than preparing your witness before the deposition.
Recently, we worked with a bilingual (Spanish-English) attorney who represented a client who spoke and understood English, but was much more comfortable communicating in Spanish. When we started our witness evaluation and preparation session, there were times when the witness understood the question in English, and would not wait for the translation. However, when the questions were more difficult, the witness would wait for the Spanish translation. It became clear to us that this inconsistency – waiting for the translation of the more difficult questions, but answering the easily understood questions without waiting for the translation – could be viewed by jurors as obfuscation, or hiding behind the translator.
Before we tackled the substance of that witness’s testimony, we had to acclimate the witness to the process of waiting for the question to be translated from English to Spanish before answering the question in Spanish. It takes practice for a witness to be consistent and to avoid answering some of the easier parts of the question before the entire question has been translated. We established and practiced a rhythm for our witness to use when testifying with an interpreter. This rhythm can seem agonizingly slow and unnatural to both the attorney and the witness, especially when they already know how the question will be answered. Nevertheless, maintaining this rhythm is crucial to your witness’s credibility, and in turn, their efficacy.
If, during your preparation, you come across a term or subject that does not translate, ask yourself how important is the witness’s understanding of this term, or subject, to their testimony. If you suspect that it might be important later, do not skim over it or apply a quick solution. Instead, use it as an opportunity to bond with your witness. Make the extra effort to understand them and you can help them to articulate in a way that translates appropriately and effectively to the jury. Turn that something that doesn’t translate into something that resonates.
What is said and what is heard
Jurors may not feel as able to assess the substance, emotion, or meaning when the witness speaks in a language other than English. We have heard from witnesses and attorneys that different interpreters do not always use the same words to articulate the same idea. Additionally, your witness’s efficacy may be harmed if they are judged as less credible simply because they speak with an accent.
Prepare your witness to focus on listening to the interpreter. Though the jury may not understand what the witness says, your witness should be instructed to address the jury as though they speak the same language as your witness. Because the witness is heavily reliant on the things that the interpreter says, LEP witnesses have a habit of looking at the attorney or at the interpreter when responding. It may seem awkward for the witness to address the jury at first, but it is important to encourage the witness to establish a connection with the jurors. Having an interpreter may mean losing some of the affect in the witness’s voice, but having the witness look at the jurors provides a visual interaction that helps to create a connection with the jurors.
Much like the witnesses who are proficient in English, LEP witnesses’ problems can also stem from a lack of familiarity with courtroom processes and procedures. Below are some recommendations for preparing any witness. Make them clear to LEP witnesses, as non-verbal behavior for their culture may not be read the same by jurors with backgrounds that differ from the witness.
Other Issues for Jurors & LEP Witnesses
Immigration Attitudes
During voir dire, when notified that there may be witnesses who will testify through an interpreter, we have heard jurors make statements such as, “I don’t think that illegal immigrants should be able to file lawsuits in this country,” and “If they want to live in this country and be part of this society, they need to learn the language [English].” These statements from jurors illustrate that there is a connection, in the minds of the jurors, between the witness’s need for an interpreter and the issue of immigration status. Americans’ attitudes toward immigration can vary according to political party and region. Additionally, there is a difference between attitudes about immigration and attitudes about undocumented immigrants.
According to an April 2015 poll by Pew Research Center, 72% of respondents believed that undocumented immigrants should have a way to stay in the United States legally. However, on another item, 51% responded that they believe that illegal immigrants “strengthen country through hard work and talents.” Alternatively, 41% of the same respondents believe that unauthorized/undocumented immigrants “burden the country by taking jobs, housing, and health care.” The remaining 8% of respondents replied, “Don’t know” or gave no answer. These statistics suggest that support for immigration does not always comport with positive attitudes about the immigrants themselves. Data from a May 2015 Pew Research poll indicates a partisan divide for attitudes toward immigrants with 71% of Republicans responding that immigrants in the United States make crime and the economy worse, compared to only 50% of Independents and 34% of Democrats.
Consider the witness who has traveled from another country to testify and whose LEP strongly indicates that an interpreter is needed. This witness’s LEP is less of a hit to their competence or credibility than a witness who resides in the United States and does not speak English. LEP witnesses who have resided in the United States for several years must contend with the context of immigration, which can include being judged as an illegal immigrant or as someone who “doesn’t respect the country enough to learn the language.”
Before jury selection, research your jurisdiction’s demographics and attitudes toward LEP individuals and immigrants. If the witness is central to your case, make uncovering those biases an important focus of jury selection. These biases can relate to a juror’s negative attitudes about immigration, negative attitudes about immigrants, the juror’s occupation, the amount of contact the juror typically has with LEP individuals like your witness, and any racial or ethnic biases the juror may hold. You should also argue to have a questionnaire to root out potential implicit or explicit biases against your witness that jurors may not be comfortable disclosing in open court.
Jurors Who Translate
We also recommend that attorneys ask, during voir dire or on an SJQ, whether jurors have any familiarity with the language(s) that will be translated during the trial. Jurors who have familiarity with that language should be questioned about whether they will be able to use the translation in their decision, as opposed to using the original words from the witness.
Jurors who are proficient in the witness’s language may disregard the translator’s version and interpret the language, as they know it. These jurors also have the potential to be leaders, or will at least have increased persuasiveness in the deliberation room because they “know” what the witness “really said” or “really meant” in their testimony. Make sure that, if you have an LEP witness and an interpreter, you include this topic in the juror questionnaire or integrate this subject into the voir dire. If no attorney-conducted voir dire is allowed, and there is no supplemental juror questionnaire, ask the judge to give the jurors an instruction to abide by the translation provided in court. See below for an example from the California Civil Jury Instructions and a sample voir dire question.
Duty to Abide by Translation Provided in Court. Some testimony will be given in [insert language other than English]. An interpreter will provide a translation for you at the time that the testimony is given. You must rely solely on the translation provided by the interpreter, even if you understand the language spoken by the witness. Do not retranslate any testimony for other jurors. If you believe the court interpreter translated testimony incorrectly, let me know immediately by writing a note and giving it to the clerk/bailiff/court attendant. (CACI 108)
Sample Voir Dire Question: “In this case, many of the witnesses for both sides will present their testimony in [witnesses’ language(s)]. The judge will instruct you that you are to consider the English translation of their testimony as evidence.”
“Do you think it would be difficult for you to follow the judge’s instruction that you are to consider only the English translation as evidence, and not the witnesses’ testimony in [witnesses’ language(s)]?”
Summary
Sometimes, the performance of a single witness can make or break your case. The issues that we discussed above are common with LEP witnesses. These issues relate to the logistics of testifying with language interpretation, and issues of context and culture. All of these factors can contribute to the witness’s efficacy. Be aware of these issues and plan accordingly.
For more tips on litigating with an LEP client or witness, check out these links for free downloadable resources on the ABA’s website:
http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/language_access.html
http://apps.americanbar.org/domviol/trainings/national_institute_on_integration_of_interpreters.html
Dr. Alexis Forbes is an Associate Trial Consultant with Bonora Rountree Trial Consulting & Research in San Francisco, California. Using her specialized training as a behavioral scientist, Dr. Forbes’s work involves designing, conducting, and analyzing pretrial research, juror profiling and voir dire, as well as preparing witnesses for deposition and trial. The Bonora Rountree firm has over 40 years of trial consulting experience in complex business, criminal defense, intellectual property, and antitrust cases. www.br-tcr.com alexis@br-tcr.com
Dr. Will Rountree is a Senior Trial Consultant with Bonora Rountree, Trial Consulting & Research in San Francisco, California. In addition to providing consulting services on antitrust, intellectual property, employment, and complex business cases, Dr. Rountree is also frequently retained as an expert on change of venue and pretrial publicity analysis. He received his J.D. from the University of Wisconsin-Madison, and his Ph.D. from the University of California–Berkeley. www.br-tcr.com will@br-tcr.com.
[1] This article focuses on languages that are spoken; it does not address the issues that are specific to witnesses who are deaf or hard of hearing. Many of the resources listed at the end of this article provide information and recommendations specific to witnesses who are deaf or hard of hearing.
RT @TheJuryExpert: new in The Jury Expert: Untying Tongues: Preparing Witnesses W/ Limited English Proficiency (LEP) https://t.co/YMbfdaPgqE
This article raises interesting issues related to preparing LEP witnesses to testify through a deposition interpreter at a deposition, or a court interpreter at a trial.