EvidenceProf Blog

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

Wednesday, October 20, 2010

Arm Of The Judiciary: New Jersey Appellate Court Finds Judge's Clarification About Translations Didn't Violate Rule 605

A defendant is charged with armed robbery and related offenses. At trial, a Spanish speaking employee of the store that the defendant allegedly robbed testified through two interpreters that the defendant robbed the store. Thereafter, defense counsel impeaches the employee-witness through testimony that the witness gave during a pretrial hearing, during which he referred to the incident as an "asulto," which a different interpreter translated as an assault. During a lunch recess, the two trial interpreters approach the judge in his chambers and tell him that "asulto," has two meanings, assault and robbery. Over defense counsel's objection, the judge thereafter instructs the jury that the trial interpreters told him about the two meanings of "asulto." Has the judge committed error? According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Baylor, 2010 WL 4028585 (N.J.Super.A.D. 2010), the answer is "no." I agree.

The facts in Baylor were as stated above. After the employee testified that the defendant robbed the store, defense counsel impeached him through the following exchange:

Q. And do you remember being asked the following questions and giving the following answer, on page 5 line 9?

A. Yes. Yes.

Q. Question by [the prosecutor] to you, "Did a robbery occur at the store on October 24th, 2005? Answer: It was kind of an assault."

A. A robbery, yes, a robbery. The come in with guns and it is a robbery...

THE COURT: Do you remember him asking you what happened and you said there was an assault, or like an assault?

THE WITNESS: Yes. Yes. Yes...

Q. And do you remember being asked yet again a second time,...again from [the prosecutor], "Now, you said the incident was kind of an assault? Yes, it was an assault."...

Sir, did you give the following answer a second time, “yes, it was an assault?”

A. Yes.

Subsequently, after the interpreters talked with the judge in his chambers, the judge gave the following jury instruction:

Now, another issue that has come up, the court reporters that we have today approached me at lunchtime and said, you know, there may be differences in interpretation of a given word, assault. And assault, they indicate may mean robbery in Spanish. Well, that could be important in this case. We have an interpretation from a couple of days ago....

There was a record from a couple days ago, and you heard the questioning in that connection by [defense counsel], he asked was it a robbery, and the answer a couple of days ago, it was an assault. Or it was a robbery, kind of an assault, and then he was further asked, he said it was a robbery. He said it was a robbery.

But there is much confusion in my mind that I felt I had to delve into this with this explanation, particularly so because today he did use both the phrases or both terms, and I asked our court reporter to read it back to everyone at lunchtime before you got here, and he said, yes, the assault, the robbery. So, there you are.

I'm not testifying, I'm only telling you that there is a question concerning that interpretation. I think counsel may ask questions to further clarify this of the witness himself. It is terribly important to have an understanding from him as to what he means by a given word. That is really the critical aspect of it, as I see it.

We reject defendant's contentions on appeal that the judge's instruction to the jury was error because it constituted hearsay, testimony by the judge, or expert evidence without proper foundation.

After the defendant was convicted, he appealed, claiming that the judge's actions violated New Jersey Rule of Evidence 605, which provides that "The judge presiding at the trial may not testify as a witness in that trial. No objection need be made to preserve the point." In rejecting this argument, the Superior Court of New Jersey, Appellate Division, found that

The judge gave explanatory instructions to the jury after the interpreters informed him of their clarification of Teofilo's testimony. The judge was no more a witness than at any other time when a trial judge instructs the jury regarding the law, a point of evidence, or the nature of a ruling that affects the jury's consideration of the evidence. Defendant's contention is untenable that the judge should have allowed a potentially incorrect interpretation to stand after it was brought to his attention. We find no abuse of discretion in the trial judge's clarification of the interpreters' translation.

What was unstated in the court's opinion, but what the trial judge correctly found, was that "court interpreters are an arm of the judiciary, to aid and assist." Why was this point important? Well, courts have found that judges violate Rule 605 if they engage in ex parte communications and then relay those communications to the jury. See, e.g., State v. Ryan, 601 N.W.2d 473 (Neb. 1999). Communications with interpreters, however, are not ex parte, i.e., with one party, because judges appoint interpreters pursuant to Federal Rule of Evidence 28 and state counterparts, meaning that they are an arm of the judiciary.



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