Translated Testimony

As society becomes increasingly more diverse culturally and linguistically, translated testimony will become a more frequent component of the American justice system. Due to the complex nature of the translation process, errors and misunderstandings of interpreted testimony are nearly unavoidable and can affect jurors’ perceptions of a trial. Misjudgments may occur due to the inadvertent influences of the court interpreter or jurors’ biased perceptions of a defendant’s translated testimony. Psychological theories related to individuals’ social identity and the human propensity to categorize other people as members of one’s in-group or out-group may provide a framework for understanding the potential biasing nature of translated testimony. The implications for law and policy provided by research pertaining to translated testimony are vital for the fair and impartial treatment of all people within the u.S. justice system.

From the perspective of courts in the united States, the official language of courtroom proceedings is English. When a trial participant does not speak or understand English, court interpreters are used. The court interpreter’s task is to completely, impartially, and accurately reiterate in English the utterances of a trial participant that originate in a speaker’s native language. The interpreter also renders the utterances that originate in English into the native language so that the non-English-speaking witness or defendant can understand the proceedings as well.

The number of monolingual and minimally bilingual non-English-speaking individuals who come in contact with the U.S. criminal justice system is increasing. According to the 2005 Annual Report of the Director of the Administrator’s Office of the United States Courts, the number of cases requiring the use of court interpreters increased by 1.5% in 2005, with the Spanish language involved in 94% of these cases. The 2000 U.S. Census indicated that the percentage of Spanish speakers living in the United States increased by 3.2% since 1990; additionally, 10% of the Spanish-speaking population was monolingual. This rise in the monolingual Spanish-speaking population has created a need for Spanish-English interpreters, in particular in the United States.

Perceptions of Translated Testimony

Linguistic minority speakers are at a disadvantage in the courtroom. Early research demonstrated that English-speaking individuals perceive unaccented English more favorably than either Black vernacular English or Mexican American accented English. Thus, if linguistic minority witnesses and defendants choose to communicate in English during the court proceedings, they may be perceived less favorably by the jury because of their accented or limited English. Providing translated testimony to counter the linguistic minority speaker’s limited English does not remove this bias.

Furthermore, the court interpreter’s translation of testimony can shape jurors’ views of speakers in the courtroom due to linguistic alterations in the translation process. Interpreters tend to lengthen testimony by using uncontracted versions of words and altering fragmented speech into a more narrative form. For example, in Spanish-to-English translation, English interpreters often add hedges such as “…uh,…well, and…um” into the speaker’s testimony. These added hedges may reflect the interpreter’s own performance deficiencies in the translated language; however, such additions to testimony cause the jurors to perceive the witness, not the interpreter, less favorably.

Finally, linguistic minority defendants and witnesses are forced to rely on the interpreter to understand the courtroom proceedings. During translation, interpreters may inadvertently alter an attorney’s intended meaning during questioning by weakening the force of leading questions or including additional words. For example, if an interpreter adds words such as “well” or “now” to the beginning of an attorney’s question during cross-examination, the witness may view the attorney as confrontational. Such alterations in the structure of the questions can influence the witness’s perception of the attorney and understanding of the questions, thus altering the resulting testimony.

Impact on Jurors’ and Juries’ Decisions

The fact that interpreted testimony per se may influence the outcome of criminal cases has been demonstrated as well. Empirically derived data reveal that jurors see criminal defendants who testify in a language other than English with the assistance of an English interpreter more negatively than defendants who testify in English. For example, data collected in Texas courts in the 1990s showed that criminal defendants who testified in Spanish with interpretation into English were at significantly greater risk of conviction than were similarly situated defendants who testified in English. That is, the negative perceptions of non-English speakers were converted into a predisposition to vote for conviction of the defendant. This occurred even when people who themselves were Spanish speakers served on the juries that convicted.

More recent experimental data collected in the same jurisdictions suggested that the language of a defendant’s testimony continues to have an impact on jurors’ judgments about the guilt of defendants but that now the direction of the outcome has changed. That is, jurors serving on cases where defendants testify in Spanish with English interpretation are less likely to be conviction prone, other things being equal, than jurors serving on cases with equivalently situated defendants who testify in English. However, this effect seems to be diminished when jurors deliberate, when the language of defendants’ testimony does not appear to influence juries’ decisions. An important additional finding from this research is that the jurors’ own language use influences both voting preference prior to deliberations and jury verdicts after deliberations. Spanish-English bilinguals seem to be more lenient in general than are monolingual English speakers.

Explanations of the Impact of Language

One theoretical explanation proposed for these results follows social identity theory. This theory postulates that individuals are motivated to maintain a positive social identity. In addition, it is presumed that humans have a universal and natural tendency to categorize other people as members of the categorizer’s in-group or members of some other out-group. One can use a variety of strategies to maintain a positive self-image, but important strategies relate to the way we interact with and reward those we see as in-group or out-group members. One can, for example, increase one’s own positive self-image by perceiving members of one’s in-group more favorably than members of out-groups and by deferentially rewarding those who are in-group members. In a legal context, leniency would be expected from those jurors who perceive themselves to be most similar to the defendant. Spanish-speaking jurors would be expected to perceive Spanish-speaking defendants as more similar to themselves than would English monolinguals and thus would be expected to act more favorably toward Spanish-speaking defendants. Similarly, English monolingual jurors should be more lenient, other things being equal, with English-speaking defendants and more punitive with Spanish speakers. The empirical data from the studies conducted to date do not support this logic, however. Rather, Spanish-speaking jurors are more lenient toward defendants in general, no matter what the defendants’ language of testimony. In addition, regardless of their own language use, jurors treat Spanish-speaking defendants more leniently.

An alternative hypothesis is that jurors should be motivated to see themselves, and be seen by others, as different from those who are accused of crimes. Other things being equal, they should be predisposed to convict defendants to clarify the fact that they are different from that person.

By testifying in a language other than the mandatory language of the proceedings (i.e., English), a Spanish-speaking defendant also may be seen as an out-group member by all the jurors. To serve as a juror, an individual must be able to read and write the English language. Therefore, by testifying in Spanish, the defendant is demonstrating that he or she is distinctly different in this regard.

While out-group members may be treated more punitively than in-group members, this punitive treatment may not be manifest in the bilingual courtroom. Indeed, quite the opposite may occur. The commission of a crime is what society would define as deviant behavior. Violations of norms result in negative sanctions (e.g., convictions and imprisonment), but this also is contingent on the observers’ (e.g., the jurors) recognition that the person who violated the norms was able to conform to the expectancies in the first place.

When they testify in Spanish, defendants may be perceived as foreigners in a system that they do not understand. Jurors may be sympathetic toward the Spanish-speaking defendants because they see them as individuals who do not understand the situation in which they find themselves. This speculation suggests a new line of inquiry to pursue empirically. That is, if a defendant is seen as a “stranger” to the system, jurors may heighten their standard for the burden of proof and require the prosecution to justify the conviction of an individual who does not completely understand the consequences of his or her actions.

Community attitudes also may explain the results of the research outcomes to date. Recall that the impact of jurors’ language use has been shown to be greater than that of the defendant’s language of testimony. It may be that jurors’ views of the American judicial system are critical in providing a context for their decisions. So, for example, it may be that more people who serve as jurors today hold more negative attitudes regarding law enforcement and the courts than those who served as jurors in the past, producing a more lenient outcome for defendants.

Implications for the Law

Court interpretation plays a pivotal role in the provision of justice to linguistic minorities in the United States. Future empirical research concerning court interpreters and the impact of translated testimony on jurors will provide useful information for the legal system and allow for unbiased due process for all defendants.

It is vital that standards remain consistent concerning the availability of a translator in all cases involving linguistic minorities. The establishment of state and federal training and certification procedures ensures that courts handle such cases in a consistent and impartial manner. Furthermore, programs allowing for contract interpreters and telephone interpreting in districts where no certified interpreters are available are important steps to facilitate due process for all defendants. In addition to training court interpreters consistently, training for legal professionals such as judges and attorneys may allow for a better understanding of the special challenges associated with such cases. This type of training will generate greater awareness of the rights of defendants and the responsibilities of federally certified interpreters.

The fact that jurors are prepared to treat defendants who testify in the official language of trials (English) differently from those who do not is disturbing. Regardless of the quality of the interpretation, the fact that interpretation is provided at all seems to be an influential factor in the outcome of cases. At a minimum, courts may need to provide additional instruction to jurors to set aside their beliefs about those who do not testify in English. If jurors are instructed that the language of testimony is not to be included in consideration of the meaning and importance of facts presented in evidence, they may be able to hold their predilections in abeyance, and equal treatment can be given to all defendants.

References:

  1. Berk-Seligson, S. (1990). The bilingual courtroom. Chicago: University of Chicago Press.
  2. Hovland, D. L. (1993). Errors in interpretation: Why plain error is not plain. Law and Inequality: A Journal of Theory and Practice, 11, 473-503.
  3. Laster, K., & Taylor, V. (1999). Interpreters and the legal system. Leichhardt, New South Wales, Australia: Federation Press.
  4. tephan, C. W., & Stephan, W. G. (1986). Habla ingles? The effects of language translation on simulated juror decisions. Journal of Applied Social Psychology, 16, 577-589.

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