Is There Bias Against Witnesses
Who Testify Through Court Interpreters?

California Court of Appeal Rejects
Church’s Claim That Trial Court Exhibited Bias
against Witnesses Who Testified
Through Korean Interpreter

Why Attorneys Should Use Professional Interpreting Services when Client Speaks Limited English

Legal interpreting services by multilingual court-certified interpreters are utilized daily by courts around the country.  It is, therefore, not uncommon for some people to wonder whether the use of a court interpreter during trial creates bias against witnesses who testify through court interpreters.

In LA Open Door Presbyterian Church v. Evangelical Christian Credit Union, the plaintiff purchased land to build a sanctuary for its church members. It obtained a loan from defendant credit union to finance the project. The credit union foreclosed on the property when the church stopped making its loan payments. The church subsequently file suit against the credit union alleging numerous claims including fraud and deceit, wrongful foreclosure, conversion, breach of oral agreement, and other claims for relief.

The plaintiff church was not successful in the trial court. The trial court granted summary judgment in favor of the credit union on plaintiff church’s wrongful foreclosure and fraud and deceit causes of action and a jury returned a verdict in favor of the credit union on the church’s cause of action for conversion. The court also dismissed the plaintiff church’s other causes of action. The plaintiff church appealed, claiming that the trial court abused its discretion for a number of reasons and that it exhibited bias against the church during the jury trial on the conversion claim. Specifically, the plaintiff church alleged that the trial court “displayed bias based on race, national origin, and religion when [its] Korean-speaking witness testified through an interpreter.” Id. The plaintiff church’s argument was supported by various portions of the court transcript in which the trial court allegedly improperly interfered with witness testimony and exhibited bias against them because of their inability to speak English.

The following is one of several excerpts in which the plaintiff church alleged the court exhibited bias:
Q. Why are you testifying in Korean?
Plaintiff’s Attorney: Objection
The Court: No, that’s a proper question. That’s a good question. I don’t know. Overruled.
Plaintiff’s Attorney: That’s 352, your Honor
The Court: No, that’s a good question. I don’t know. Overruled.
The Witness: Because Korean is more comfortable so in Korean.
The Court: that’s your answer.
Attorney for Credit Union: You are not testifying in Korean so it appears that you are sympathetic or don’t understand English; correct?
Plaintiff’s Attorney: Objection. Argumentative.
The Court: No, overruled. That’s overruled.
The Witness: No. No, nothing like that.”

Section 752 of the California Code of Evidence Code provides: “(a) When 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 the witness can understand and who can understand the witness shall be sworn to interpret for the witness. ”

The question whether a court interpreter shall be called for the purpose of rendering the testimony of a witness who does not understand the English language rests in the discretion of the trial court.” (People v. Holtzclaw (1926) 76 Cal. App. 168, 173, 243 P. 894.) “[T]he court is required to appoint an interpreter in those cases only where the witness does not understand or speak the English language. The question is one for the judicial determination of the court, and its ruling will not be disturbed unless the record clearly discloses an abuse of discretion …” Hilbert v. Kundicoff (1928) 204 Cal. 485, 487-488, 268 P. 905.

In arguing that the trial court improperly exhibited bias, the plaintiff church cited to Canon 35B(5) of the California Code of Judicial Ethics, which provides, in relevant part: “A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, engage in speech, gestures, or other conduct that would reasonably be perceived as…bias or prejudice, including but not limited to bias or prejudice based upon race,…religion, national origin, or ethnicity…” Id. The court of appeal rejected the plaintiff church’s argument that the trial court had exhibited bias because its witnesses were Korean and testified through a Korean interpreter. The court of appeal noted that the plaintiff church had failed to explain how any of the court’s comments or rulings were biased on accord of race, national origin, or religion. The court of appeal did, however, find that the trial court erred in denying the plaintiff church’s request for leave to amend its complaint to assert a breach of contract claim and also found that it erred in granting summary adjudication in favor of the defendant credit union and against the plaintiff church on its cause of action for fraud and deceit. These portions of the judgment were reversed and remanded accordingly.

The case is LA Open Door Presbyterian Church v. Evangelical Christian Credit Union, case no. B263657, decided on September 19, 2016 by the Court of Appeal of the State of California Second Appellate District, Division Five.

This language translation blog article is provided for informational purposes only and should not be construed as legal advice. You should always consult an attorney regarding your specific legal needs.

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