When presented with a witness who speaks English as a Second Language (ESL), it is difficult to predict how they will be perceived by a jury. In a previous post, we examined the challenges of identifying juror bias against foreign witnesses, but that raises a separate, yet related issue as to whether that witness is better received through an interpreter or through testimony provided in a heavy accent. Regardless of whether the witness is foreign-born or was raised in the United States but speaks English as a second language, how the witness should testify is an important consideration.
Indeed, a survey of jury eligibles found that 15% of jurors admit they would find an English-speaking witness more credible than a non-English speaking witness. If we consider the inhibiting effects of self-report surveys, as well as the likelihood of implicit bias and projection of one’s undesirable characteristics onto others, even more telling is the fact that 50% of jurors agreed that other jurors are more likely to trust an English-speaking witness over a non-English speaking witness (See Figure 1). Moreover, as we saw in the previous Foreign Witness Blog, 81% of jurors agreed that all immigrants to America “should learn to read, write, and speak English.” These findings, showing a favoritism toward English-speakers, would seem to suggest that it is beneficial for witnesses to testify in English when able to do so. To test this theory more specifically, the survey also asked about the credibility of witnesses who testify through interpreters, as well as the credibility of witnesses who speak in heavy foreign accents.
Figure 1: Are jurors influenced by a witness’ speaking language?
Jurors’ Preferences: Interpreters versus Heavy Accents
As evident in Figure 2, when asked about their personal attitudes, jurors exhibited a slight preference for witnesses that speak with a heavy accent over those who testify through an interpreter. That is, while 15% of jurors admitted they would tend to distrust the testimony of a witness who testifies through an interpreter, only 10% said they would distrust a witness with a heavy foreign accent. Though only a fraction of jurors admitted these biases, these questions are clearly important to ask in voir dire when you anticipate putting an ESL witness on the stand.
Figure 2: Jurors’ personal attitudes
Asked in a different way, Figure 3 illustrates the discrepancy between jurors’ reports of their personal views versus their projections on jurors in general. Not surprisingly, jurors believed that others would be more influenced by both an interpreter and a heavy accent than they, themselves, would be. If we assume these responses reflect at least some degree of projection of the jurors’ own biases, the reports still indicate a preference for heavy accents over interpreters.
Figure 3: Juror projected attitudes
Qualitative Reports: Witness Using Interpreters versus Heavy Accents
In addition to the survey results – which suggested that as much as a quarter of jurors would have trouble trusting interpreted testimony – we also examined jurors’ reactions to live and videotaped witnesses who testified through interpreters. For example, we recently conducted a mock trial where the parties presented ESL witnesses (with an interpreter) for a Japanese manufacturer on a product liability case. In the mock trial, jurors reported that the use of an interpreter affected their views of the witness because it allowed some doubt to enter their minds as to whether the interpretation was accurate. This was particularly true of a language unfamiliar to most jurors, such as Japanese.
On the flipside, when the interpretation is of a more familiar language (such as Spanish), jurors often listen to both the witness and interpreter carefully in assessing credibility. Perceived differences between the jurors’ understanding the witness’ testimony and the interpreter’s interpretation of it may cause jurors to view the entire testimony suspiciously. Furthermore, you run the risk of jurors focusing more on the accuracy of the interpretation than actually absorbing the content and meaning of the testimony.
Moreover, jurors tend to hold the witness to the high expectation that if an interpreter is needed, the witness should not be able to speak English. When a witness demonstrates he or she understands some English (e.g., begins answering the question before it has been translated, or uses some English when answering), jurors can become concerned that a witness is overplaying his or her inability to speak English, which calls the witness’ credibility into question. During post-trial interviews for a French client, for instance, jurors identified that this problem damaged the credibility of several of the company’s witnesses. Several jurors pointed out that the witnesses would sometimes answer the attorney’s question before the interpreter re-asked it. One witness would even respond to the interpreted questions in English if his answers were single sentences, though he provided longer answers in French. This is certainly understandable for witnesses who understand some English, yet lack the fluidity necessary for complex responses, though jurors reported it affected credibility nonetheless. Most concerning to the jurors, however, was one particular witness who would correct the interpreter when he felt that her interpretation of his response was inaccurate. Jurors ultimately suspected he knew more than he was letting on, in more ways than one. Overall, jurors noted that they felt the witnesses were “hiding” behind the interpreter or merely attempting to bide more time to formulate their responses.
When Should You Use an Interpreter for a Witness?
Although jurors indicate a preference for testimony provided in English over the use of an interpreter, the decision to have an ESL witness testify in English must be made carefully. Often, witnesses with limited English comprehension or vocabulary have difficulty understanding the nuances of an attorneys’ questioning, especially on cross-examination, and thus may be more susceptible to attorney pitfalls. They may also have difficulty accurately expressing their responses (e.g., a witness who reports he was “worried” or “scared” about a design issue paints a different picture than a witness who states he merely “had some concerns”).
The ability of jurors to tolerate testimony in a heavy accent should also be a consideration. Like watching a subtitled movie, jurors may struggle to know where to focus their attention. Indeed, some jurors have reported that it is “exhausting” listening to a very heavy foreign accent, or they find it difficult to understand – and end up tuning out entirely. In one focus group involving a French-Canadian witness, the witness attempted to speak English throughout her deposition. However, because she spent time translating the questions and responses in her head, there were long pauses and efforts to ensure that her English was “perfect.” Jurors in this project emphatically agreed that while they commended the witness for trying to speak English, she would benefit from an interpreter to avoid the long pauses and quicken the pace of the testimony.
Considering both the survey results and our experiences with foreign witnesses, we generally recommend using interpreters only when the witnesses’ English is extremely poor or if their English substantially slows the proceedings. Most importantly, it is essential to work with these witnesses to practice speaking through an interpreter, making sure they grow into the habit of waiting until the interpreter completes the question before responding, even if they understand the question.
A Case-by-Case Decision
Ultimately, whether an ESL witness should testify through an interpreter is a case-by-case decision. It is important to gauge the witnesses’ ability to speak English, as well as their comfort level doing so. Mock trials and focus groups can be a great way of testing how jurors will react to the witness in addition to their ability to understand him or her. Regardless of how the ESL witness testifies, you can be sure that he or she will need more practice and preparation sessions than your average witness, which should be built into the trial preparation schedule. In some instances, there may be alternative solutions, such as having a witness with a heavy accent testify in English on video, with subtitles to help the jurors’ comprehension. Counsel may even spend some time examining the witness on his or her language abilities, helping jurors to understand that simple questions may be answered in English, while more complex responses may be provided in the witness’ native tongue. If you anticipate facing this complex issue, considering reaching out to a consultant who has worked with foreign witnesses and may offer some additional insight as to how jurors are likely to respond.