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In-court interpreter’s errors weren’t prejudicical

State v. Brenda S. Webster, 2016AP225-CR, District 3, 11/15/16 (not recommended for publication); case activity (including briefs)

M.P., the complaining witness at Webster’s trial, for robbery of a grocery store, spoke only Spanish, so she testified through an interpreter. On three occasions the interpreter mistranslated M.P.’s testimony. The court of appeals holds the interpreter’s mistakes, considered individually or together, weren’t sufficiently prejudicial to warrant a new trial.

The interpreter mistranslated M.P.’s description of: who Webster was with when she visited the store before the robbery; what parts of the robber’s face were visible through the ski mask the robber was wearing; and erroneously stated M.P.’s surname ended in “S” instead of “Z.” (¶¶3-10). Webster argues that an interpreter’s performance must be assessed under SCR 63.01, which requires the interpreter to provide “a complete and accurate translation.” (¶13). The court of appeals instead applies the standard from State v. Besso, 72 Wis. 2d 335, 343, 240 N.W.2d 895 (1976), which requires the party challenging the translation to show the interpreter was deficient and that he or she has been prejudiced by the interpreter’s performance. (¶¶14-15). In a very fact-specific discussion, the court explains why the interpreter’s mistranslations in this case are too insignificant or inconsequential to have affected the determination of guilt. (¶¶16-21).

Webster also argues that the circuit court erred in failing to determine that the interpreter was qualified as an expert witness, as required by § 906.04. This argument is forfeited:

¶28     As a general matter, we recommend that circuit courts use the procedure outlined in the Wisconsin Court Interpreters Handbook, or a similar procedure, to ascertain whether a proposed interpreter has the background, experience, and expertise necessary to be qualified as an expert witness. Here, however, the circuit court’s failure to do so does not warrant reversal because Webster never challenged the interpreter’s qualifications in the circuit court. She did not raise any concern about the interpreter prior to the start of M.P.’s testimony. Although she objected during M.P.’s testimony and moved that the interpreter be disqualified, she did so based on errors in the interpreter’s translation, not based on any perceived deficiency in the interpreter’s qualifications.

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{ 2 comments… add one }
  • Jim Kroner November 17, 2016, 10:15 am

    How did trial counsel know of the improper translation to be able to provide a contemporaneous objection to the translation during the trial? If there was an objection that brought the substance of the translator’s mis-translation to the attention of the court during trial and during the testimony of the witness whose testimony was inaccurately translated, why didn’t the court correct the mis-translation to the jury then and there?

  • Christian Thomas December 2, 2016, 2:44 pm

    I had a similar question: how was the record preserved?

    I had a case in which I caught the interpreter mid-trial using some biased language. I called the Court’s attention to it, but there were a number of problems: 1) there was no record of what my client had said in Spanish, and 2) the Judge, not being bilingual, was not in the position to determine if I was right or not about what was said.

    My take-away from this case is that I am going to use my phone to record my client’s testimony from here on in in interpreter cases.

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