Often times you hear the phrase “lost in translation” in reference to misunderstanding in conversation. From past experiences as an attorney, I’ve gained a different appreciation for things that get “lost in translation” in the courtroom. These moments wouldn’t have come to pass if I wasn’t a native Spanish speaker. If I were any other attorney, one who didn’t grow up in a Spanish speaking country and a Spanish-speaking household, I wouldn’t have noticed the issues and happily kept going about my day without knowing a miscarriage of justice was afoot.

Recently I read an article written by Tony Maura[1] as to whether the Miranda Warnings[2] should be read in Spanish to Spanish speaking criminal suspects. The article speaks of the limitations encountered by Spanish speaking suspects when their rights are read to them, including, but not limited to having other defendants interpret for them or having officers with “high school Spanish” recite the rights in Spanish. I can’t imagine how any court could possibly uphold a waiver of Miranda by a Spanish speaking suspect as “knowing and voluntary” in this type of situation.

The piece in the article which caught my eye the most was the mention of how an officer used the wrong word for “free” when referring to having an attorney appointed at no cost.[3] This type of mistake is common to the untrained reader/listener because in English the word “free” has multiple meanings which, depending on the context, can mean without cost or that you have no constraints on your liberty. As pointed out in Mauro’s article, the officer used “libre” referring to liberty rather than “gratis” which refers to cost. This mistake can be costly depending on its effect on the listener. In this case, I would argue that it rendered the Miranda rights deficient, thus robbing the suspect of the due process promised to him by our Constitution.

Overall, the article brought back some memories from my time as a State Prosecutor, both as a Certified Legal Intern in Leon County and as a sworn Assistant State Attorney in Broward County. On multiple courtroom occasions I’ve noticed that even Court appointed interpreters make simple contextual mistake when translating from Spanish to English or English to Spanish. These were mistakes made by someone who is trained and certified to interpret. For example, in the middle of a trial with a Spanish speaking witness (State witness, father of the defendant), the question posed by the Prosecutor was, “was the room Carlos’?” However, the translator asked, “Was it your son’s room?” Now, without context, you’re probably wondering where the problem is with that statement. When the key to the case is that the room was in fact Carlos’, and the witness has multiple sons, this becomes a problem. The State is charged with proving, beyond a reasonable doubt, that the defendant is guilty of the offense charged. When the case hinges on constructive possession, ownership of the room where the contraband is found is of utmost importance. Therefore, the missteps in translation make a difference for both sides.

The obvious retort to the above situation is, “well how would the defense or the Judge have known the difference?” They wouldn’t have in the instant moment if they didn’t speak Spanish or even if they did, they may not have caught the importance of the shift in wording. However, you never know for sure who in the room knows a second language. Whether State or defense, it would be prudent to employ an independent translator to track the Court appointed translator for missteps that could turn a case and knows how to point those errors out. Had I not been there to step in for the State and correct the word usage, and the defense attorney was a fluent speaker like me and caught on to the difference, the case likely would have been a loss for my trial partner and me.

This situation I described is a specific occurrence, but on several other occasions I had to jump into action and pause the proceedings in order to explain to the Judge at sidebar that the interpreter was not properly translating either the attorney’s or the witness’ statements. Had I not been there, the result might’ve been different or been the same. I’ll never actually know, but it’s always better to be thorough and not let silly things like truth, justice, and liberty get lost in translation merely because a suspect, defendant, or critical witness does not speak English properly.

Our Constitution contains safeguards to ensure that all of those who are subject to our laws are treated fairly, equally, and given due process of law. The Constitution doesn’t contain a footnote saying “so long as you speak English,” nor does it ever mention that English is the official language. Merely “teaching” police how to read a Miranda card in another language is not enough of a fix for the prospective Constitutional violation. Much like we do in Court, why can’t an interpreter be afforded for suspects in the light of interrogation? How would you feel if you were detained in a foreign country with a foreign language and your only line of communication was your travel companion who speaks five more words of that language than you?

If you ever find yourself in a situation where you feel like the police have taken advantage of you because English is not your first language and you didn’t understand your rights as they were read to you, contact an attorney who will fight for your rights and freedom. Having an ally who can communicate with you in your native language can make or break a case by not allowing simple distinctions like “who’s room was it?” to take away your rights to life, liberty, and the pursuit of happiness.

Kristian S. Oldham, Esq.

Associate Attorney

Pumphrey Law Firm

www.PumphreyLawFirm.com

Kristian S. Oldham is an Associate Attorney for the Pumphrey Law Firm. He graduated from the Florida State University College of Law in 2013 and was a Prosecutor in the 17th Judicial Circuit of Florida prior to joining the Pumphrey Law Firm in the Summer of 2015. Kristian can be reached at Kristian@donpumphrey.com

[1] http://www.law.com/sites/almstaff/2016/08/08/is-it-time-for-a-better-miranda-warning-in-spanish/?cmp=share_twitter&slreturn=20160712145340

[2] Miranda Warnings are four declaratory statements and a question that Law Enforcement Officers must as before interrogating a suspect. See Miranda v. Arizona, 384 US 486 (1966).

[3] The State of Florida charges an application fee of $50 to those who seek the representation of the Public Defender. See Fla. Stat. 27.52 (2016).