Expert Witness Testimony Concerning Danish Gothic Script (Blackletter)
Legal translators, court interpreters and linguistic experts are often called in as expert witnesses in litigation involving rare and common foreign languages. The below case – United States v. Roberts, No. 3:20-cv-0010, 2023 WL 5974860 (D.V.I. Sept. 14, 2023) – shows the important role a qualified translator serving as an expert witness can play when a litigant seeks to use handwritten foreign language records that are centuries old.
Dispute Over Ownership of Parcel No. 5A
United States v. Roberts involves a property dispute between a family in St. John, U.S. Virgin Islands, and the U.S. Government. According to the First Amended Complaint filed by the U.S. in 2020, the government seeks removal of the family from land administered by the National Park Service, a judgment that the family has no interest in the land and recovery of costs that arose from the family’s illegal occupation of the land as well as for common law trespass and nuisance.
The government claims it is the owner of the parcel of approximately 500 acres. It claims that Thomas Braithwaite owned the parcel in 1797. Following several transfers of ownership, the government claims that the land was gifted to the National Park Service in 1956. In 2008, the National Park Service noticed that structures were being erected on the land. The government informed the individuals on the land that they were illegally occupying federal property.
By 2018, the government claims there were ten structures located on the property as well as a 50-foot fence with signs indicating the land is private and two portable toilets. Additionally, the government claims the parcel is littered with trash, broken appliances, plastic containers and abandoned vehicles. Finally, the government claims that the family has blocked a public road that runs through the property and that the family’s dogs harass park visitors and even adjacent landowners that try to use the road.
In response, the family claims it owns the parcel and that their ancestor John Nerkitt owned the land at one point. The government claims they have not shown any evidence of ownership to date.
Testimony of Expert in Danish Gothic Script to Proving Ownership
To prove its rightful ownership of the property, the government plans to rely on the testimony of an expert witness Camilla Jensen to show that land records establish that the federal government owns the land. The records date back to the time when Denmark owned the islands of St. Croix, St. John and St. Thomas. The records are written in Danish Gothic Script and the government plans to rely on Jensen who will translate and transcribe the records from Danish to English.
Family Moves to Disqualify Danish to English Translator as Expert Witness
The family moved to disqualify Jensen as an expert witness arguing that she (1) does not qualify as an expert witness; (2) the testimony is unreliable; and (3) the testimony does not “fit” the case.
First, the family claims that Jensen is not qualified because she lacks specific training, skills, special knowledge or education to be considered an expert on Danish Gothic Script. The family argues that Jensen neither has formal training or certification in transcribing Danish Gothic Script nor does she have a certification to testify in any court on the subject.
Second, the family claims her methods are unreliable because they do not meet the Daubert factors as developed by the U.S. Supreme Court. The family claims her process is not generally accepted and lacks a testable hypothesis. Additionally, it claims that her method has not been subject to peer review and she is unable to provide an error rate for her transcription method.
Third, the family claims the testimony does not “fit” the proceeding because her testimony will not be helpful. It claims her testimony is subjective and speculative. Also, the land records may not conclusively show a comprehensive chain of title.
Federal Rule of Evidence 702
FRE 702 provides that a qualified witness may be permitted to provide expert testimony where the witness’s specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact that is in issue. In summary, the rule requires an expert witness to be qualified, the testimony must be reliable, and the testimony must “fit” the particular case.
Jensen is Qualified as Expert Witness
The District Court found that Jensen is a qualified expert witness. The District Court explained that it has discretion when determining whether or not a witness is qualified. It also noted that it is encouraged to construe the term “qualified” liberally so that evidence that may assist the trier of fact can be admitted. There are no specific qualifications that an expert witness must satisfy. An expert witness does not need to have a specific certificate, credential, educational prerequisite or even be the most qualified in the particular field. Instead, an expert witness can have a broad range of knowledge, skills and training.
Jensen’s Proposed Testimony is Reliable
The District Court also found that Jensen’s proposed testimony would be reliable. The District Court reasoned that the Daubert factors are not exhaustive nor do they apply in every case. It further reasoned that in the instant case, Jensen would be translating and transcribing Danish land records into English, which is a fairly straightforward process. While different transcribers may come up with different results, each transcriber would use the same method. The family could not suggest another more allegedly reliable method. The District Court held that transcribing a foreign language is not an inherently unreliable process.
Jensen is fluent in Danish and is very knowledgeable in Danish Gothic Script. Specifically, Jensen has worked at translating and transcribing Danish Gothic Script in her position at the Virgin Islands Social History Associates for the past twenty years. This is the exact job that she will be doing as an expert witness in the case. The District Court also noted that there are very few certifications on the subject of Danish Gothic Script. Therefore, Jensen’s lack of a specific degree or certification in the field is not of concern.
Jensen’s Proposed Testimony “Fits” the Case
Finally, the District Court explained that to fit a case, testimony must only potentially help the jury resolve a factual dispute. The land records translated from Danish to English would help the jury determine the rightful owner of the parcel because the information would show the chain of title going back to the time Denmark ruled over the islands.
The District Court warned the U.S. that Jensen could solely serve as an expert in the translation and transcription of the land records. Jensen would not be allowed to infer what certain information in the records means. For example, if there is a blank in the records, Jensen would not be allowed to explain why the information is missing or what the lack of information means.
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