Return to CALJIC Part 1-2 – Contents
F 1.03 n1 Interpreter Need Not Be Certified If Competent.
People v. Estrada (86) 176 CA3d 410, 415 [221 CR 922] held that “[t]here is no right … to a certified interpreter. There is only a right to a competent interpreter….Certification is simply foundational to the interpreter’s competence.” (See also People v. Superior Court (Almaraz) (2001) 89 CA4th 1353, 1359 [107 CR2d 903] [failure to provide certified interpreter does not violate state constitution if interpreter provided is competent].)
F 1.03 n2 Refusal To Appoint An Interpreter.
Under EC 752(a), “[w]hen a witness is incapable of understanding the English language or is incapable of expressing himself or herself in the English language so as to be understood directly by counsel, court, and jury, an interpreter whom he or she can understand and who can understand him or her shall be sworn to interpret for him or her.” The decision on whether to appoint an interpreter falls within the trial court’s discretion. (People v. Holtzclaw (26) 76 CA 168, 173-77; see also People v. Augustin (2003) 112 CA 4th 444, 450-51 [victim’s recorded testimony demonstrated an adequate ability to communicate her perceptions in English language so as to be understood by the court, counsel, and the jury without interpretation].)
F 1.03 n3 Interpreters: Consideration Of Physical Disabilities.
EC 752(a) is broad enough to permit a court to appoint an interpreter for a witness whose difficulty communicating stems from a physical disability. (Cal. Law Revision Com. com., reprinted at 29B pt. 2 West’s Ann. Evid. Code (1995 ed.) foll. §§ 752, p. 372; see also People v. Holtzclaw (26) 76 CA 168.)
F 1.03 n4 Interpreters: Resources.
See Hon. Charles Grabau and Joseph G. Llewellyn, “Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation,” New England Law Review, vol. 30, no. 2, Winter 1996.
Court Interpreting — Publications & Resource Material Research Services: Court Interpretation: Model Guides for Policy and Practice in the State Courts, National Center For State Courts:
http://www.ncsconline.org/wc/publications/Res_CtInte_ModelGuidePub.pdf
F 1.03 n5 Whether Interpreters May Testify As To Defendant’s Actions In Court.
(See People v. Leon (2001) 91 CA4th 812 [reversible error for the trial court to admit testimony from the defendant’s interpreter as to alleged actions of the defendant in court].)
F 1.03a Admonition To Report Juror Misconduct or Personal Knowledge of Fact in Controversy
*To be added at end of CJ 1.03:
If during the course of the trial you become aware that you have any knowledge, whether by personal contact, rumor or otherwise, of a fact in controversy or of any of the witnesses, you must immediately inform me or the bailiff. Further, if you are exposed to evidence not presented at trial or to rules of law not stated in these instructions either from outside sources or another juror, you must immediately inform me or the bailiff.
Points and Authorities
CJ 1.03 admonishes the jurors that they must decide all questions of fact from the evidence received in trial and not from any other source. However, despite this admonition, it is not uncommon for jurors to be exposed to outside influences.
However, the jurors should also be told to report knowledge of witnesses, facts in controversy and exposure to extrajudicial evidence or statements of the law. (See PC 1120: jurors must declare in open court personal knowledge of fact in controversy or declaration of personal knowledge by another juror during deliberations.) Such an instruction could serve to disclose juror misconduct which, not uncommonly, is not discovered until after trial. For example, in People v. Holloway (90) 50 C3d 1098, 1108-12 [269 CR 530], the Supreme Court unanimously reversed a death penalty case in which a single juror read a newspaper article containing prejudicial information not revealed at trial. After he read the article the juror remembered thinking that he had “blown it” and he wished he had never seen the article. Nevertheless, he made no mention of having read the article until after the jury had finished its guilt phase deliberations. Had the juror revealed this matter earlier the prejudice could have been cured by substituting an alternate juror. (See also In re Stankewitz (85) 40 C3d 391, 396-400 [220 CR 382].)
The need to instruct jurors as to what potentially prejudicial matters should be reported to the court was illustrated by In re Hamilton (99) 20 C4th 273 [84 CR2d 403]. In Hamilton, the Supreme Court concluded that a juror had no duty to report an encounter with the defendant’s sister because the trial court had given no instruction to the jurors that they should report such matters. (Id. at 305.) Hamilton also discussed whether the court’s admonitions were sufficient to apprise jurors that they should report any incident outside the courthouse involving a person connected to the trial. (Id. at 305-306; compare In re Carpenter (95) 9 C4th 634, 641, 646-67 [38 CR2d 665] [jurors admonished to immediately report any attempt by a non-juror to discuss the case].)
To avoid leaving the jurors confused as to whether and how to report potential improprieties CJ 1.03 — as well as other admonitions regarding jury conduct during trial — should encourage the jurors to immediately disclose any violations of the admonition.
This instruction should be given prior to trial and before commencement of deliberations. (See FORECITE F 17.50a.)
By guarding against the jury’s consideration of facts not introduced into evidence this instruction protects the defendant’s federal constitutional rights to confrontation, cross-examination, assistance of counsel and due process (6th and 14th Amendments). (See, Gibson v. Clanon (9th Cir. 1980) 633 F2d 851, 853.)
NOTES
When a juror, during trial, makes comments indicating that the juror believes that the defendant is guilty, the misconduct is reversible even though the juror acquiesced in voting for a lesser verdict. (People v. McDonald (95) 37 CA4th 1838 [45 CR2d 73].)
CAVEAT: See FORECITE F 17.41.1 et seq. regarding potential problems with and challenges to “juror-snitch” instructions.
F 1.03b Admonitions Regarding Publicity Before And During Trial
*Pretrial Supplement to CJ 1.03:
PRETRIAL PUBLICITY
There has been a substantial amount of publicity about this case [and about the defendant] in the media. Some of this publicity may have come to the attention of some of you. You, of course, must lay aside and completely disregard anything you may have read or heard about the case outside the courtroom. Your verdict must be based solely on the evidence presented in court, in accordance with the court’s instructions.
*To be given mid-trial when appropriate:
PUBLICITY DURING TRIAL
I am advised that reports about this trial are appearing in the media. Please do not read anything or listen to anything with regard to this trial. The case must be decided by you solely on the evidence which is presented in court.
Points and Authorities
CALJIC contains no instructions regarding the jury’s duty to avoid consideration of publicity about the case. Logically, these instructions, which are adapted from the standard federal instructions contained in Devitt, et al.,Fed. Jury Prac. & Inst. (1992) § 10.03 [re: pretrial publicity] and § 10.18 [re: publicity during trial], should be given where appropriate.
F 1.03c Duty Not To Converse
*Replace ¶ 3 of CJ 1.03 with the following:
Until this case is submitted to you to begin your deliberations you must not discuss it with anyone at all — even with your fellow jurors. After it is submitted, you must discuss the case only in the jury room with your fellow jurors and when all jurors are present.
Points and Authorities
PC 1122(b) requires that the jury be admonished before each adjournment not to converse among themselves or with others. PC 1122(a) requires pretrial instruction of the jurors upon their duties. CJ 1.03, ¶ 3, contains similar language but is more awkward than the above instruction which is adapted from Devitt, et al., Fed. Jury Prac. & Instr. (1992) § 10.01, p. 259.
F 1.03d Jury To Be Guided By Official English Translation/Interpretation
SUBSEQUENT HISTORY: In its first 1998 pocket part CALJIC, aligned itself with FORECITE by adding an instruction informing the jury that it must accept the English interpretations of translated testimony. (See CJ 1.03.)
*Add to CJ 1.03:
Languages other than English may be used during this trial.
The evidence you are to consider is only that provided through the official court [interpreters] [translators]. Although some of you may know the non-English language used, it is important that all jurors consider the same evidence. Therefore, you must base your decision on the evidence presented in the English [interpretation] [translation]. You must not rely in any way upon your own interpretation or translation of the witness’ words.
Points and Authorities
The above instruction is adapted from the 9th Cir. Model Jury Instructions (1995) No. 1.12 and 3.18. (See U.S. v. Fuentes-Montijo (9th Cir. 1995) 68 F3d 352.)
F 1.03e Interpreted Proceedings: Instructing Interpreters On Procedure
*Add to CJ 1.03:
(1) Do not discuss the pending proceedings with a party or witness.
(2) Do not disclose communications between counsel and client.
(3) Do not give legal advice to a party or witness. Refer legal questions to the attorney or to the court.
(4) Inform the court if you are unable to interpret a word, expression, special terminology, or dialect, or have doubts about your linguistic expertise or ability to perform adequately in a particular case.
(5) Interpret all words, including slang, vulgarisms, and epithets, to convey the intended meaning.
(6) Use the first person when interpreting statements made in the first person. (For example, a statement or question should not be introduced with the words, “He says. . . .”)
(7) Direct all inquiries or problems to the court and not to the witness or counsel. If necessary you may request permission to approach the bench with counsel to discuss a problem.
(8) Position yourself near the witness or party without blocking the view of the judge, jury, or counsel.
(9) Inform the court if you become fatigued during the proceedings.
(10) When interpreting for a party at counsel table, speak loudly enough to be heard by the party or counsel but not so loudly as to interfere with the proceedings.
(11) Interpret everything, including objections.
Points and Authorities
California Standards of Judicial Administration Standard 2.11(a) [Instructions to interpreters] (amended effective January 1, 2007) [court or the court’s designee should give the above instructions to interpreters, either orally or in writing]; see also Tyars v. Finner (9th Cir. 1983) 709 F2d 1274, 1277 [defendant’s rights to due process were abridged by an interpreter’s misstatement of the defendant’s testimony].
F 1.03f Interpreted Proceedings: Instructing Non-English Speaking Parties On Procedure To Be Followed When The Witness Is Testifying
*Add to CJ 1.03:
(A) The witness must speak in a loud, clear voice so that the entire court and not just the interpreter can hear.
(B) The witness must direct all responses to the person asking the question, not to the interpreter.
(C) The witness must direct all questions to counsel or to the court and not to the interpreter. The witness may not seek advice from or engage in any discussion with the interpreter.
Points and Authorities
If the court finds good cause under California Rules of Court Rule 2.893(e) (formerly Rule 984.4(e)), it may hold a preappearance interview with the party or witness to become familiar with speech patterns and linguistic traits and to determine what technical or special terms may be used. Counsel may be present at the preappearance interview. (California Standards of Judicial Administration Standard 2.11(a)(12).)
During the preappearance interview with a non-English-speaking witness, the witness should be given the above instructions on the procedure to be followed when the witness is testifying. (California Standards of Judicial Administration Standard 2.11(a)(13), amended effective January 1, 2007.)
F 1.03g Interpreted Proceedings: Instructing Non-English Speaking Parties On Procedure To Be Followed When The Witness Is Not Testifying
*Add to CJ 1.03:
(A) The interpreter will interpret all statements made in open court.
(B) The party must direct any questions to counsel. The interpreter will interpret all questions to counsel and the responses. The party may not seek advice from or engage in discussion with the interpreter.
Points and Authorities
If the court finds good cause under California Rules of Court Rule 2.893(e) (formerly Rule 984.4(e)), it may hold a preappearance interview with the party or witness to become familiar with speech patterns and linguistic traits and to determine what technical or special terms may be used. Counsel may be present at the preappearance interview. (California Standards of Judicial Administration Standard 2.11(a)(12).)
During the preappearance interview with a non-English-speaking witness, the witness should be given the above instructions on the procedure to be followed when the witness is not testifying. (California Standards of Judicial Administration Standard 2.11(a)(14),amended effective January 1, 2007.)
F 1.03h Interpreted Proceedings: Instructing Counsel On Procedure
*Add to CJ 1.03:
(1) When examining a non-English-speaking witness, direct all questions to the witness and not to the interpreter. (For example, do not say to the interpreter, “Ask him if. . . .”)
(2) If there is a disagreement with the interpretation, direct any objection to the court and not to the interpreter. Ask permission to approach the bench to discuss the problem.
(3) If you have a question regarding the qualifications of the interpreter, you may request permission to conduct a supplemental examination on the interpreter’s qualifications.
Points and Authorities
California Standards of Judicial Administration Standard 2.11(b) (amended effective January 1, 2007) [Instructions to counsel [court or the court’s designee should give the above instructions to counsel, either orally or in writing].
F 1.03i
Duty Not To Converse: Expanded Explanation
*Replace CJ 1.03, 3rd paragraph, with the following:
You must not discuss this case with any other person, except a fellow juror during deliberations and then only after the case is submitted to you for your decision and only when all twelve jurors are present in the jury room. “Any other person” includes, but is not limited to, persons with whom you may have a close or confidential relationship such as spouses, spiritual leaders or advisers, or therapists. If anyone, other than a fellow juror during deliberations, makes statements about the case in your presence, report that conversation immediately to the court.
Points and Authorities
See People v. Danks (2004) 32 C4th 269, 307 [“Because jurors instructed not to speak to anyone about the case except a fellow juror during deliberations (CALJIC Nos. 0.50, 1.03) may assume such an instruction does not apply to confidential relationships, we recommend the jury be expressly instructed [on this point]”].
NOTE: The above language is adapted from the language suggested in the Danks opinion.
F 1.03j
Juror Reliance On Personal Experience
*Add to CJ 1.03:
It is not improper for you to express your opinion during deliberations on a technical subject about which you have had personal experience. However, any such opinion must be based on the evidence at trial. You must not discuss an opinion explicitly based on specialized information obtained from outside sources. Injection of external information in the form of a juror’s claim to expertise or specialized knowledge of an issue is misconduct.
Points and Authorities
“A juror may not express opinions based on asserted personal expertise that is different from or contrary to the law as the trial court stated it or to the evidence, but if we allow jurors with specialized knowledge to sit on a jury, and we do, we must allow the jurors to use their experience in evaluating and interpreting the evidence. Moreover, during the give and take of deliberations, it is virtually impossible to divorce completely one’s background from one’s analysis of the evidence. We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions that attorneys draw, never refer to their background during deliberations.” (People v. Steele (2002) 27 C4th 1230, 1266; see also People v. San Nicolas (2004) 34 C4th 614, 650.)
