SERIES 100 PRETRIAL INSTRUCTIONS
F 121 DUTY TO ABIDE BY TRANSLATION PROVIDED IN COURT
TABLE OF CONTENTS
F 121 Inst 1 Interpreted Proceedings: Instructing Interpreters On Procedure
F 121 Inst 2 Interpreted Proceedings: Instructing Non-English Speaking Parties On Procedure To Be Followed When The Witness Is Testifying
F 121 Inst 3 Interpreted Proceedings: Instructing Non-English Speaking Parties On Procedure To Be Followed When The Witness Is Not Testifying
F 121 Inst 4 Interpreted Proceedings: Instructing Counsel On Procedure
F 121 Note 1 Interpreter Need Not Be Certified If Competent
F 121 Note 2 Refusal To Appoint An Interpreter
F 121 Note 3 Interpreters: Consideration Of Physical Disabilities
F 121 Note 4 Interpreters: Resources
F 121 Note 5 Whether Interpreters May Testify As To Defendant’s Actions In Court
Return to Series 100 Table of Contents.
F 121 Inst 1 Interpreted Proceedings: Instructing Interpreters On Procedure
The interpreter is instructed as follows:
(1) Do not discuss the pending proceedings with the jurors.
(2) Do not disclose communications between the jurors during deliberations.
(3) 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 jurors. If necessary you may request permission to approach the bench to discuss a problem.
(8) Position yourself near the juror 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 juror, speak loudly enough to be heard by juror 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].
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 6.13 [Due Process: Interpreter]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 1.03e.
F 121 Inst 2 Interpreted Proceedings: Instructing Non-English Speaking Parties On Procedure To Be Followed When The Witness Is Testifying
(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.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 6.13 [Due Process: Interpreter]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 1.03f.
F 121 Inst 3 Interpreted Proceedings: Instructing Non-English Speaking Parties On Procedure To Be Followed When The Witness Is Not Testifying
(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.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 6.13 [Due Process: Interpreter]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 1.03g.
F 121 Inst 4 Interpreted Proceedings: Instructing Counsel On Procedure
(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].
Identification Of Parties— See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 6.13 [Due Process: Interpreter]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 1.03h.
F 121 Note 1 Interpreter Need Not Be Certified If Competent
People v. Estrada (1986) 176 CA3d 410, 415 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 [failure to provide certified interpreter does not violate state constitution if interpreter provided is competent].)
CALJIC NOTE: See FORECITE F 1.03 n1.
F 121 Note 2 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 (1926) 76 CA 168, 173-77; see also People v. Augustin (2003) 112 CA4th 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].)
CALJIC NOTE: See FORECITE F 1.03 n2.
F 121 Note 3 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 (1926) 76 CA 168.)
CALJIC NOTE: See FORECITE F 1.03 n3.
F 121 Note 4 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
CALJIC NOTE: See FORECITE F 1.03 n4.
F 121 Note 5 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].)
CALJIC NOTE: See FORECITE F 1.03 n5.
