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Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, January 27, 2009

Lost In Translation: Court Of Appeals Of Texas Opinion Indicates That Texas Has A Ninth Rule Of Evidence Under Article X

The recent opinion of the Court of Appeals of Texas in Onwuteaka v. Commission For Lawyer Discipline, 2009 WL 136886 (Tex.App.-Houston 2009), reveals that the Texas Rules of Evidence have one more Rule of Evidence under Article X than do the Federal Rules of Evidence.

In Onwuteaka, Edin Perez and Erwin Jimenez sustained personal injuries in an automobile accident and hired attorney Joseph Onwuteaka to represent them in their personal injury matters.  Upon becoming dissatisfied with Onwuteaka's representation, Perez filed a Spanish language grievance with the State Bar of Texas.  Thereafter, Onwuteaka elected to have his disciplinary matter tried in district court before a judge, who entered a judgment against Onwuteaka and imposed a three-year fully probated suspension from the practice of law and monetary sanctions.

Onwuteaka subsequently appealed, claiming, inter alia, that that the trial court abused its discretion by admitting a translated version of Perez's State Bar complaint.  Onwuteaka claimed that the English translation of Perez's complaint failed to comply with Texas Rule of Evidence 1009(a), which states that:

     "[a] translation of foreign language documents shall be admissible upon the affidavit of a qualified translator setting forth the qualifications of the translator and certifying that the translation is fair and accurate. Such affidavit, along with the translation and the underlying foreign language documents, shall be served upon all parties at least 45 days prior to the date of trial."

According to Onwuteaka, the affidavit submitted by the Commission For Lawyer Discipline failed to articulate the translator's qualifications.  The Court of Appeals of Texas, however, found this argument to be without merit because:

     "the trial court did not admit the English translation. Rather, the court sustained Onwuteaka's objection with respect to the English-translated version and admitted only the original Spanish version."

Notwithstanding the inapplicability of Texas Rule of Evidence 1009(a) to Onwuteaka's trial, I think it makes Article X of the Texas Rules of Evidence an improvement over Article X of the Federal Rules of Evidence, which ends with Federal Rule of Evidence 1008.  It seems to me to be the necessary compliment to Rule of Evidence 604, which states that:

"[a]n interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation."

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/01/translation-jos.html

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Comments

Thank you for this interesting blog post. For additional information on the role of certified translations and professional court interpreters in the practice of law visit my legal translation blog Translation for Lawyers, located at http://www.translationforlawyers.com.

Best regards,

Nina

http://www.languagealliance.com

http://www.translationforlawyers.com

Legal Translators & Court Interpreters in 80+ Languages

Posted by: Translation for Lawyers | Feb 28, 2009 10:38:48 AM

Very interesting reading. Though the problems pertaining to legal translation are not limited to the Court. Since translation usually implies that the legal document to translate is from language-of-Country-A into language-of-Country-B, the literal translation of some terms might not reflect its legal application.
This is complicated even to explain, so I'll just advise you to read http://milatova.com/en/Mila+Tova+%7C+articles+%7C+Legal+translation if you are interested in exploring further what oriblems a legal translator is confronted with.

Posted by: Patricia | Jun 25, 2010 3:28:43 AM

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