Friday, January 11, 2008

They call me Juror #8

Earlier this week I finally had the chance to serve on a jury. I’ve been called several times, but more often than not, I have been dismissed from the general cattle call right away. Once, I made it into a courtroom and participated in the attorneys’ voir dire. That was a criminal trial, alleged aggravated assault, with a pair of defendants (whose middle names were respectively Napoleon and Canute — no kidding! And that really tickled my literary fancy, I can tell you!), but I didn’t make that jury. This time, I did; and so I engaged in the only opportunity ordinary citizens have for direct participation in government.

My trial was a civil lawsuit in the 191st District Court, Judge Gena Slaughter presiding — and don’t you just love her name! One thing I found very interesting about this trial was that the defendant was not a native speaker (though he could speak “a lot of English”), and so he experienced the entire trial through chuchotage. This is a wonderfully onomatopoeic word for whispered simultaneous interpretation. This was inaudible to those of us on the jury until the defendant took the stand to give his own testimony. At that point, I listened carefully to his answers in Spanish, and the interpreter’s translations into English. Now I am certainly not fluent in Spanish, but I can speak and understand enough to follow along fairly well, especially when a translation immediately ensues. For the most part, the interpreter was excellent; however, I did notice a few instances when she failed to render something he had said into the English testimony, or rendered it somewhat more loosely than perhaps she ought.

On our jury, we had only two fluent Spanish speakers, and during our deliberations, I asked them whether they had noticed the same minor errors and oversights. They had, and we brought this to the attention of the rest of the jury. None of these mistakes were of the kind of importance that would alter our verdict (and were surely within accepted legal tolerance), but they do raise thorny questions about communication — especially in an environment where the precision of legal definitions and a preponderance of Latin and French legal terminology can make successful communication even entirely in English problematic. As we were to learn firsthand during our deliberations!

And here’s an anecdote to back that up. I happened to have my copy of Nicholas Ostler’s biography of Latin with me, which I read from while in recess or during breaks in the jury room. This didn’t go unnoticed, and several of us had a conversation about the history of Latin as well as why I should be reading about any such thing.

Later, during deliberation, a preliminary canvas showed a split of eight to four on the question of “negligence” and “proximate cause” in our case. We debated, argued, asked questions, drew diagrams, talked over each other, and generally did exactly what juries do for another two hours, during which only one person from the majority defected to the minority (which didn’t help the prospects for a verdict, as we were required to agree by at least ten to two, not eight to four, or seven to five).

Finally, I tasked myself with closely parsing and puzzling over the several pages of legal definitions the judge had given us, obviously something I should have done much sooner. This included the definitions of such vague terms as “proximate cause,” which sounded straight out of Aquinas: “Effects are denominated necessary or contingent, as the case may be, by the condition of their proximate causes.” [1]). This led me to come up with another, less equivocal way to phrase the jury charge. Not unlike Cicero, I daresay, and with my biography in Latin on the table in front of me, I orated clearly and concisely, for no more than two minutes; whereupon, we took another canvas. Apparently, I had flipped all seven remaining in the majority over to the minority opinion, resulting in an immediate unanimous verdict. Jaws dropped around the table, and I sat down. One of my fellow jurors broke the silence by saying, “I guess you have to read about the history of Latin to be able to make something like that happen.”

And people have always told me I’d make a hell of a lawyer. Case closed. :)


[1] St. Thomas Aquinas. Philosophical Texts. Sel. and trans. by Thomas Gilby. London: Oxford University Press, 1951, p.257.

8 comments:

  1. I read with great interest your comment about the interpreter except I have to say that it gave me great pause to hear that jurors were somehow judging the quality of a foreign language interpretation.
    I am indeed a court interpreter. Twenty one years of service with the Massachusetts Court system, founder of the Office for Interpreter Services, creator of the state certification exam for legal interpreters. That being said, and without the slightest animus of defensiveness, you must trust that had the interpreter strayed one or both attorneys would have jumped with an objection. It's the nature of the beast.
    A trial is not a scripted episode of Law & Order but, in some ways, it holds no surprises to any of the "actors". There are grand jury minutes, deposition, interviews, prepping so whenever a witness takes the stand both parties have a pretty good idea of what's going to be presented at trial. So, no harm done.
    As happy as I am to read that a colleague did well, it troubles me that jurors have considered any other language but English. It's the language of record, it's the only language you should consider. Regardless of the jurisdiction you were at, the judge should have given an instruction concerning the presence of the interpreter and the fact that jurors, specially those cognizant of the foreign language in question, should disregard the language and consider only the English testimony. The certified court interpreter is the language expert for the court and only his/her testimony will stand barren some challenge that the court would consider outside the presence of a jury.
    Why? A court interpreter must be certified before being allowed to work in any court and he or she must meet other criteria such as a BA and even MA's in linguistics/translation. The field is highly competitive, particularly for Spanish.
    Here in Massachusetts there is a prerequisite of a BA and 2 years of prior interpretation experience. All interpreters must pass a written translation exam in both languages followed by an oral examination covering sight translation and simultaneous and consecutive interpretation. The written exam takes about 4 hours and includes an ethics component, and the oral exam, which you can only take if you pass the written test, give or take 2. The level of scrutiny is necessary due to the fact that a lot of interpreters are "self-taught" in view of the limited number of higher education programs available in this country. Other countries, most notably Switzerland and France, have had graduate programs in place since the early 60's. The lesson of the Nuremberg Trials was learned in Europe, not in this country.
    Most states rely on in-house training, national conferences held by established peer groups such as the American Translators Association (ATA) and the National Association of Juridical Interpreters and Translators (NAJIT). The National Center for State Courts in Williamsburg is the clearing house for all things interpretation and also offers certification examinations in multiple languages that are uniformly administered at a state level. Of course, my colleagues would frown if I neglected to mention the Federal Certification Exam which has been in place since 1976 (notice how very recently that was) and which is considered by all to be the MOTHER OF ALL TESTS. Just ask anyone who has attempted to pass it! I should also mention that our foreign language certifications took one big page from the standards for training and certification set by the R.I.D, the Registry of Interpreters for the Deaf many years ago. The RID alone has some twelve levels of certification, the top one being of course legal interpretation.
    But let me go back to your trial. There is perhaps a very simple explanation for the interpreter's less than a 100% performance. Fatigue. The United Nations conducted a study at some point in very recent history that shows that the level of accuracy in an interpretation starts to falter by 20% (I think that's the figure) after the 1st hour. After interpreting for more than 3 hours you and your client are basically toast. This is the reasoning behind the use of team interpreting in which interpreters alternate every 20 minutes. Bathroom brakes aside, your neurons simply have to rest. The simple truth, however, is that few jurisdictions have the resources to assign a team of interpreters in every trial. Last but not least, let me point out that all interpreters, court and medical, are bound by a code of conduct and that the ethics of the profession are widely known and enforced at a national level. Had your interpreter encountered any difficulties he or she was aware that they are bound to self report, not only in the middle of testimony, but afterwards.
    From a personal standpoint I must add that interpreting in any court, in any proceeding, at any time, is a daunting and at times thankless job that drains every ounce of your intellect on any ordinary day. An interpreter is not unlike that relief pitcher who sits in the bullpen waiting to be called to the mound. Like him, the interpreter comes into the situation ready to face each and every linguistic swing a speaker has to offer. The only difference between the closer (Pabelbon?) and me that whereas the closer comes in for the almost surgically correct three outs, an interpreter must deliver in equally effective manner for the entire nine innings. The task is enormous, the stakes are sickeningly high, but the satisfaction of a job well done, priceless, as they say.
    Before closing I must point out that I have never experienced that other daunting and challenging responsibility of being a juror. Civil or criminal, the reality of holding someone's fate in your hands is overwhelming. Believe me, there is no such thing as a small trial or negligible charge. As Judge Slaughter (whose name can only be compared to our J. Felony and others that do not come to mind) probably told you, YOU the JURY are the only ones that can JUDGE the facts. Every court is there to put whatever resources at your disposal and answer any questions concerning the testimony and the physical evidence presented at trial. Moreover, the judge is there to explain the law for you must apply the law as the judge gives it to you in his/her instructions.
    My greatest concern on your account is the fact that the jurors engaged in the discussion of semantics. The very presence of that book you were reading would have to be deemed suspect by any judge as jurors are not allowed to do any research on their own. There have been cases overturned by supreme courts because a juror looked up a word in the dictionary and brought it to the deliberation room. The only thing you can rely on is your common sense and your life experience as a whole. My only question is whether the foreperson understood his/her role in the process.
    I'm definitely not an attorney but as an observer of the process of many years, your jury should have turned, as they must in every circumstance, to the judge for clarification. If attorneys were to tell about the times a jury has sent in a question about language (every one out there, joint venture!), this tale would never end.
    Thank you for providing me with the space to comment on a subject that rarely creates a wrinkle beyond the confines of our profession. I learned this much from reading your entry, you must always be vigilant and cognizant of your skills and abilities. My fellow interpreters, know when to ask for help!
    Maribel P. Espiet Livingstone
    Certified Spanish Court Interpreter

    Massachusetts Trial Court

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  2. Hola Maribel. Thank you for that illuminating inside look at the profession, including its rigorous certification process. A few comments ...

    That being said, and without the slightest animus of defensiveness, you must trust that had the interpreter strayed one or both attorneys would have jumped with an objection. [...] There are grand jury minutes, deposition, interviews, prepping so whenever a witness takes the stand both parties have a pretty good idea of what's going to be presented at trial.

    In this case, for a very short trial on a small matter (no offense to the parties involved), I doubt it. There was no grand jury and only one deposition. And if I may make so bold, the attorneys’ preparation of their clients for giving testimony and withstanding cross-examination seemed minimal. I also have no reason to expect that either attorny spoke Spanish.

    Also, the kinds of oversights or mistakes would not necessarily be apparent to even a prepared attorey. I’m not speaking of a mistranslation on the order of giving “left” for “right” or “yes” for “no”. An example: translating the defendant’s reply to the question of his speed, the interpreter said “five or ten [mph]”; but the defendant repeated these numbers in a subsequent answer, and the interpreter left them untranslated that time.

    And all of this comes as no surprise to me for a personal injury civil lawsuit (now, a felony trial, on the other hand ...).

    As happy as I am to read that a colleague did well, it troubles me that jurors have considered any other language but English. It’s the language of record, it’s the only language you should consider. Regardless of the jurisdiction you were at, the judge should have given an instruction concerning the presence of the interpreter and the fact that jurors, specially those cognizant of the foreign language in question, should disregard the language and consider only the English testimony.

    No such explicit instruction was given. We were told to disregard our own highly specialized knowledge — as an example, one of our jurors, a Ph.D. teaching anatomy and physiology at a dental school, was told he could not appeal (even in his own internal deliberation) to his specialized medical knowledge when evaluating the deposition of an osteopathic surgeon.

    However, no such instruction was given with respect to language, and I’m not so sure it would be a defensible position to say that it should be implicitly assumed. If it were of the kind of legal moment you suggest, then it’s especially surprising that it would not be highlighted, considering the demographics of Texas in general, and of our jury in particular.

    There is perhaps a very simple explanation for the interpreter's less than a 100% performance. Fatigue.

    I’m sure that must be true. And again, if it wasn’t 100%, I’m sure it was better than 98% or 99%. I simply noticed a small number of choices that I would call omissions, oversights, or minor mistranslations.

    The United Nations conducted a study at some point in very recent history that shows that the level of accuracy in an interpretation starts to falter by 20% (I think that’s the figure) after the 1st hour. After interpreting for more than 3 hours you and your client are basically toast.

    I can believe it, but good heavens, that’s a short time frame! In our trial, the same interpreter was “on stage” for as much as two to three hours at a time without any break, two days in a row. It also occurred to me that a translation of the taped deposition we heard from an expert witness could have been prepared in advance. Why wasn’t it?

    From a personal standpoint I must add that interpreting in any court, in any proceeding, at any time, is a daunting and at times thankless job that drains every ounce of your intellect on any ordinary day.

    I can well imagine! :)

    The very presence of that book you were reading would have to be deemed suspect by any judge as jurors are not allowed to do any research on their own.

    I would find it hard to swallow that my leisure reading could be called research on matters of the trial. No Latin terms were used in our trial, and as for my quotation of Aquinas for “proximate cause” in my blog post, that’s not a definition I have memorized; I looked it up after the trial had concluded. The book really had nothing whatsoever to do with the matters of the lawsuit. Are my powers of reasoning and logic enhanced by my reading? Of course! But does that constitute the application of “specialized knowledge” to the trial? Convince me!

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  3. N.E. Brigand1/14/2008 4:55 PM

    We were told to disregard our own highly specialized knowledge — as an example, one of our jurors, a Ph.D. teaching anatomy and physiology at a dental school, was told he could not appeal (even in his own internal deliberation) to his specialized medical knowledge when evaluating the deposition of an osteopathic surgeon.

    So if the osteopathic surgeon was lying --bribed by the defendant, say-- but only that juror would have the training to realize it, he would have to disregard that?

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  4. No prep? No problem! Here's the interpreter….
    That seems to be the attitude. It sort of reminds me of Johnny Carson reading the cards on his forehead…
    That's the one thing I forgot to mention, right? Reality!
    A taped deposition by an expert witness? That poor, poor interpreter! Of course, that could have been done beforehand. I'm going to guesstimate that the interpreter was able to get in better than 50% but maybe nothing beyond 75%, provided she wasn't prepared for it.

    Why, you ask. Indifference. Ignorance. Although it's very true that professional interpreters are vastly mindful of their obligation to client and court, the truth is that some judges and attorneys treat interpreters as an afterthought.

    In the case of a civil trial there is a basic mistrust from both sides whenever an interpreter is used. To some of them it's inconceivable that the interpreter is a neutral party who is basically there to convert from one language to another. Let me give you a quick example. I was assigned to a big racial discrimination lawsuit. The corporation had no less than 6 attorneys at $450 an hour. They filled the courtroom with every imaginable technological prop, pc tablets and the like, yet they skimped on bringing their "own" interpreter to court. They were well aware the court would assign it's own interpreter at no cost to either party --just us, taxpayers. They were all happy with my work, particularly as I went through a 6-inch binder filled with exhibits though which I "hopscotched" my way doing sight translation for no less than 6 witnesses. He went ballistic though when he saw me assist plaintiff's attorney with her client claiming that I would be biased. The judge in his absence of wisdom forbid me to interpret for the plaintiff outside of the court proceedings…

    In spite of our best efforts we still have to educate the bar in general on the proper use of interpreters. This of course brings up back to the issue of the language instruction. Texas, ah. They do some wild things down there when it comes to interpreting. I'm not sure what their certification procedure is, if any. I'd have to check. At any rate the instruction is not uncommon. I believe we adopted it from the model instructions somewhere in California. Mind you, this does not mean that attorneys will ask for the instruction or that the judge will do it sua sponti. Only the most enlightened, i.e. better educated justices, do mention it in their charge to the jury. Considering that we have had the certification in place only since 1986, we should be satisfied with the fact that it is actually given although not in every case. I guess I'll pass this on to a judge (Hon Charles Grabau) who has done plenty of writing on the subject and who also proposes model instructions for the judges when dealing with court interpreters in their court.

    The fatigue factor is something that shocked everyone. Our trained interpreters are aware of it and are not shy, for the most part, when it comes to requesting a break or communicating difficulties to the court --- bad acoustics, need to consult dictionary, etc. Our office is as proactive as it can be and tries to double up interpreters in the most serious cases whenever multiple testimony by non-English speakers is expected. Yet, it's not a perfect world and some times you find yourself trap in a trial of which you had no idea. In the best of days you can actually grab the DA and demand at least the police report. Talking about bad working conditions…. But, hey, I've been doing this gig since 1978 and I absolutely love it. Besides, I'll never need to retire. !

    The afore knowledge…. Tsk, tsk. No, I don't think anyone would disagree that separating acquired knowledge from reality is at all possible, particularly not in jury deliberations. Of course, they are hoping to have a group of intelligent rational jurors sitting in that back room. As far as I'm concerned there's court proceedings before OJ Simpson and after OJ Simpson. After court TV no citizen is unaware of trial matters in general and everyone has a specialized knowledge. Bottom line? It's that illusionary line between the letter and the spirit of the law, isn't it?

    Well Jason, I have to get back to work. I'm transcribing and translating taped interviews by the police in a homicide matter. Believe me when I tell you that the use of Spanish speaking police officers is really a disservice to the police itself. Nightmare doesn't even come close to it. Suffice it to say that some of the exchanges after a misunderstood word by the police/interpreter would be hilarious but that they are truly Kafkaesque if not Beckktian.

    It's been a real pleasure. You have obviously been bitten by the law bug. Go ahead, being an trial attorney is a great as you want to make it. I'm always in awe of the best of them, truly in awe. I prefer to perch on the fence and enjoy the battle.


    Chao, Maribel.

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  5. Yes, N.E. Brigand. It’s pretty wild, isn’t it?

    The basic idea seems to be that a “jury of one’s peers” would have no specialized knowledge; therefore, if an individual member in fact has such knowledge, he or she must not consider it. It is the responsibility of legal counsel to expose lies, mistakes, or ineptitude, as well as to provide such medical or other specialized definitions as may be needed. As to legal definitions, that’s the responsibility of the judge and is provided in the jury charge.

    Everything else is left to the jury’s reasonable and common sense. How comfortable about the prospects of ending up in a courtoom does that make you feel? ;)

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  6. N.E. Brigand,

    That's a very tricky one. I would think that the surgeon's professional experience would have to come into the discussion as HIS life experience. You can't separate the two. I guess it would have to come down to the inner mechanics of the discussion among jurors. I'd imagine everyone would have to use their common sense and allow the "specialized" commentary. Besides, isn't there a bit of a bias when singling the surgeon out. Who's to say that a Discovery Channel Health nutcase wouldn't know just as much? At any rate, if there was such a concern about his knowledge, they would have excused him. Nah! they wanted him in there. Was he per chance the foreman? I wonder.

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  7. In the best of days you can actually grab the DA and demand at least the police report.

    Did I mention we didn’t have one of those either? Hahae, like I said, very little to go on. We got a chance to talk to Judge Slaughter after the trial, and we asked her why such a case, weak on both sides, even got to trial. Sadly, unless or until we get some tort reform, such lawsuits will continue to be all too common.

    It’s been a real pleasure. You have obviously been bitten by the law bug. Go ahead, being an trial attorney is a great as you want to make it. I’m always in awe of the best of them, truly in awe. I prefer to perch on the fence and enjoy the battle.

    Likwise. Thanks again for chiming in with the benefit of your considerable experience. As for me, while I may be tempted from time to time, I really don’t think I’d ever pursue a career as an attorney. I know too many of them, and they tell me it’s not all wine and roses. ;)

    Some of the cases you’ve worked on sound much bigger and more complex — from a legal as well as a translation standpoint. This was just a small lawsuit, seeking damages of only $15,000, and with only one individual who required the services of an interpreter. And in the event, we only awarded $1,265.

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  8. [N.E. Brigand] So if the osteopathic surgeon was lying — bribed by the defendant, say — but only that juror would have the training to realize it, he would have to disregard that?

    [Maribel P. Espiet Livingstone] I’d imagine everyone would have to use their common sense and allow the “specialized” commentary.

    Realistically, I would guess that such a juror would probably have a duty to speak out about it and request a decision from the judge. The judge would have the discretion, I presume, to permit that juror’s knowledge into the deliberations — or, worst case, to declare a mistrial and to retry the case with a new jury (and a new expert witness).

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