Friday, January 20, 2012
The Interpreter: 9th Circuit Finds Interpreters Don't Need To Give An Oath Before Testifying At A Trial
Federal Rule of Evidence 603 states that
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
So, before an interpreter may translate the testimony of a witness, he must give an oath or affirmation. Well, not exactly, according to the recent opinion of the Ninth Circuit in United States v. Solorio, 2012 WL 161843 (9th Cir. 2012).
In Solorio, Carlos Quintana Solorio was convicted of possession with intent to distribute 500 or more grams of a substance containing methamphetamine and conspiracy to distribute 500 or more grams of a substance containing methamphetamine. At trial, Miguel Portillo-Rodriguez testified as a witness for the prosecution in Spanish, with translation by interpreters Carol Rhine–Medina and Aracely Callaway.
Solorio did not object to these translations at trial, but he later appealed, claiming, inter alia, that the trial court erred in permitting these translations because neither Rhine–Medina nor Callaway gave an oath or affirmation before testifying. In addressing this issue, the Ninth Circuit initially noted that
Rule 604 does not...indicate whether such an oath must be administered in any particular manner or at any specified time, including whether the oath must be administered for each trial. The Administrative Office of the United States Courts ("AO"), has published guidelines on the administration of oaths to interpreters, observing that "[p]olicies with regard to the oath of interpreters vary from district to district and from judge to judge."...Although some courts administer oaths to interpreters each day, or once for an entire case, others "administer the oath to staff and contract interpreters once, and keep it on file."
The Ninth Circuit then
agree[d] with the courts that proceed in the latter fashion that there is no requirement that the oath be administered during each trial. Most telling in that regard is the absence of any such requirement—or any indication as to how or when interpreters are to be qualified and their oaths administered—in Rule 604. In contrast, Rule 603, applicable to witnesses, specifies that the oath must be administered "[b]efore testifying," suggesting a temporal nexus to the actual appearance of each witness at a particular trial. Unlike witnesses, an interpreter's role is not limited to a specific trial, and there is no apparent reason the oath need be either. In the absence of any requirement that the interpreter's oath be administered during each new trial, it could not have been plain error for the trial judge to have failed to do so.
That said, the court then found that the record did not indicate indicate "that the interpreters took the requisite oath at any time." Thus, the court found error but because it did not find plain error affecting Solorio's substantial rights, it refused to reverse because of the absence of a timely objection.