"It is far better to err by traveling a longer road or taking more time than to err by depriving one of a fair trial for want of understanding or comprehension of what is taking place."
How later courts described this case
- "It is far better to err by traveling a longer road or taking more time than to err by depriving one of a fair trial for want of understanding or comprehension of what is taking place."
- reversing conviction of a Mexican national who was denied an interpreter
- "It is important that the trial court in the exercise of its discretion as to the necessity of an interpreter, either for the defendant or for a witness, be fully advised.”
- defendant spoke “broken English”
Written by the judges who cited it.
The opinion
McDONOUGH, Justice
(concurring).
I concur in the order reversing the judgment and remanding the case for a new trial. I do so on the ground that the -cumulative effect of the errors committed resulted in prej
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udice. No question is raised as to the sufficiency of the evidence to justify the verdict, nor upon the record could such contention be sustained.
I am of the opinion, however, that no error was committed by the court in not providing an interpreter for defendant when he took the witness stand. The court had no evidence before it upon which to base a decision as to whether an interpreter should be furnished, and hence did not rule on the matter. True, the court, in response to an objection interposed by the State to the question addressed to defendant by his counsel, to wit: “Do you have difficulty in understanding all that is said to you in English?” said, “I am going to decide that, not him.” Nevertheless, the court’s last expression on the matter was, “I am neither denying you the right for [to] an interpreter in this case, nor am I granting it until you, yourself, and the defendant give the court an opportunity to be the judge as to whether or not it is necessary that we need an interpreter in this case. That is a discretionary matter with the court,, in my opinion.”
The defendant thereupon rested his case without testifying. No opportunity was afforded the court to determine whether or not the defendant had sufficient command of English to tell his story clearly to the jury. The court should,, of course, have permitted the defendant to answer the question asked by his counsel relative to his understanding of English. Had his answer been in the affirmative it might well have resolved the question. Had it been in the negative, it would not have precluded the court from making further examination as to his ability in the respect inquired about.
As the record stands, this court could not, any more than the trial court, make a finding that the defendant does not have such a command of the English language that he should be permitted to testify through an interpreter.
The same is to a certain extent true of his counsel’s request at the outset that the testimony of the witnesses be interpreted to defendant. There was before the court only
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counsel’s statement that defendant “could not understand all the English that is being said, and he is handicapped.” I am of the opinion that the court should have at that point invited inquiry or have made such into the defendant’s ability to understand English-speaking witnesses. This, because I am not at this time prepared to say that should it appear that a defendant charged with a felony — and especially if it be a capital offense — is unable to understand the language of the forum, it is not the ■duty of the court to have the testimony interpreted to him —whether or not he be impecunious. That such is the court’s duty seems to be rule in England.
Rex
v.
Lee Kun,
[1916] 1 K. B. 337, 9 B. R. C. 1121, cited by appellant, wherein the reasons upon which are based such duty of the sovereign are discussed by Lord Reading. Whether such rule or that requiring a showing of financial and other inability to secure the services of an interpreter be the rule in this jurisdiction, the showing requisite to invoke either is absent from the record. Defendant’s counsel should have made a record or proffered proof of his assertions as to defendant’s handicap, rather than exhibit petulance at any adverse ruling or demurrer to his suggestions by the court.
Nevertheless the court should have, in my opinion, invited an inquiry into the suggested handicap of defendant before proceeding.
At to the rejection of the evidence discussed in the opinion of Mr. Justice Wolfe, this was error. 6 Wigmore on Evidence, 3rd Ed., Sec. 1732. Whether such evidence was concocted or made prior to the crime for the purpose of exoneration are matters which would in most cases be divined by the jury in the light of the surrounding circumstances. I do not think, however, in view of all the evidence relative to the relations between the accused and deceased that the rejection of such evidence would justify reversal of the judgment. Yet examination of the whole proceedings creates such a substantial doubt in my
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mind as to defendant’s having had a fair trial as to amount to a conviction that defendant was prejudiced.