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In this episode of “The Trial Lawyer’s Handbook”
podcast series, litigation attorney Dan Small
delves into the debate on using interpreters for witnesses in the
courtroom. In some instances there is no choice: A witness who
cannot understand English requires an interpreter. But when
it’s a gray area, some lawyers argue that an interpreter
diminishes the connection between the witness and the jury. Mr.
Small disagrees and offers a humorous anecdote from the corruption
case United States v. Wallen, which he prosecuted, to
support his pro-interpreter stance. He closes by reminding the
listeners that misunderstandings often hurt your case and that
interpreters help minimize them for both sides.
Listen to more episodes of The Trial Lawyer’s
Handbook here.
This podcast episode was adapted from Mr. Small’s book
Lessons Learned from a Life on Trial: Landmark
Cases from a Veteran Litigator and What They Can Teach Trial
Lawyers.
Podcast Transcript
Dan Small: Language is so important in any
trial: the words, the inflection, how it’s said, why it’s
said, all of that. And so trial lawyers properly debate the pros
and cons of using interpreters for witnesses in depositions or in
trial. Sometimes it’s just absolutely necessary. If the witness
has little or no understanding of English, you may have no choice.
But what if it’s a close call? Some lawyers prefer not to use
interpreters if at all possible because it diminishes the
connection between the witness and the lawyer and between the
witness and the finder of fact.
I disagree, and I learned that lesson, in part, in the Wallen
corruption prosecution we’ve been talking about in prior
episodes, from Domenic D’Alessandro, our witness. Domenic was
born and raised in Italy. He came to this country at 17, and
although he lived here for almost 20 years, he mostly lived, worked
and socialized with other Italian immigrants. So although his
English was enough that he could usually get by in business,
English never became his native tongue. Returning to Italy and
living there for several years before our case began made the
problem more acute.
Preparing for trial, Domenic resisted any suggestion that we get
an interpreter. He was too proud. Sitting in a United States
courtroom with an American jury and others watching him made using
an interpreter embarrassing. I tried to convince him without
success. So we did a mock cross-examination without an interpreter
to see how it would go. It didn’t. It was a mess. He answered
questions he didn’t understand, answered questions that
hadn’t been asked, got confused and, yes, got embarrassed. When
it was over, he agreed to an interpreter.
The interpreter we brought in was a lovely lady. Smart and
charming; petite and almost schoolmarmish in appearance. I’m
telling you, central casting for interpreters. I gave her the
indictment and other materials to read so she could familiarize
herself with the people and places in the case. She and Domenic
spent time with us and became fast friends, which increased his
comfort level with the decision.
At trial, she provided two important advantages. First, she
helped Domenic understand what was being asked before he answered.
Several times, particularly during my direct examination, Domenic
went too fast. He answered questions without using the interpreter.
Sometimes it worked, but sometimes it was clear that he had
misunderstood part of the question. Fortunately, no real harm was
done, and during the breaks I kept encouraging him: “Domenic,
use the interpreter. It’s OK, use the interpreter.”
Sometimes when he ventured off on his own, the results were
humorous and even endearing. One example: Among the various bribes,
Charm Construction bought several cars for members of the Wallen
family, including a big Buick Electra for Frank Wallen’s
mother. In his testimony, I asked Domenic why he bought the car,
knowing that the answer was, well, because Frank Wallen had told
him to in exchange for more contracts. But Domenic waved off the
interpreter and misunderstood the question.
So with descriptive gestures, he replied, “She big
woman,” — forgive me for the accent — “She
big woman,” with his arms out wide, “drive little s**t
box car,” putting his hands close together. The jury burst out
laughing. I asked the question again a little more pointedly and
got the right answer, so all was well. But it was a good indication
of why interpreters are important, particularly for those subtle
distinctions that can make or break your case.
Second, particularly on cross-examination, the interpreter gave
Domenic time and protection. On cross-examination, defense counsel
asked questions aggressively and rapidly, trying to get some
momentum going. Domenic’s English was neither aggressive nor
rapid. He would have been lost. Although the lawyer’s outrage
was aimed at Domenic, the questions went first to this demure,
petite woman. She would politely listen, then turn to Dominic, have
a back-and-forth conversation in Italian, then turn back to the
lawyer and give a polite, simple answer.
Sometimes the conversation between the interpreter and Domenic
was long, but the answer was short. The lawyer would ask a
question, the interpreter would turn to Domenic and have a long
back and forth, and then turn back to lawyer and say,
“No.” Defense counsel complained to the judge —
clearly, Domenic had said more than that — but the
interpreter replied that interpreting the questions properly
required some explanation, and that was the end of that. On the key
government witness, defense counsel had a hard time building any
momentum on cross-examination. The interpreter wouldn’t let
that happen.
After that experience, I’ve always tried to encourage the
use of interpreters to try to minimize misunderstandings in both
directions. Obviously, it depends heavily on the quality of the
interpreter, but that’s just one more piece to test out and
prepare for as you get ready for deposition or trial. Good
luck.
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guide to the subject matter. Specialist advice should be sought
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