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A Domestic Abuse Case Lost “In Translation” is Remanded

January 23, 2025

Ortega v. Enriquez is a precedential case on the subject of a litigant’s right to an interpreter in a judicial proceeding. In this case our litigants lived together for 14 years and had three children. They never married. An incident occurred in early in 2024 where Mr. Ortega alleged that he was assaulted by Ms. Enriquez which prompted him to file for protection from abuse.

A week before the March 27 hearing Mr. Ortega asked for a translator. On the date of the hearing the plaintiff informed the presiding judge in Northampton County that he spoke some English but wanted the translator because he was not confident in his ability to testify in that language. This prompted some back and forth between the judge and the plaintiff concerning whether translation was really needed. We are reading the appellate opinion and not the full transcript but one senses that the trial judge really wanted to hear directly  from the plaintiff about the incident. Meanwhile, the plaintiff remained reluctant to proceed without the translator’s assistance. In the end, the court ordered the plaintiff to answer some questions without translator assistance and then held that the plaintiff had not sustained his burden. This produced the appeal and now a remand for a new trial.

This writer acknowledges first that he was not in Easton the day of the trial. But having witnessed dozens of similar exchanges there are some common elements here that probably merit recognition.

In defense of the judge, handling translator cases is a real burden. Judges are called upon to decide credibility and how a witness answers questions is central to that. An answer that comes in a language not familiar to the trier of fact is dead air until the translator (a court employee or independent contractor) provides the answer in English. There is not only the pause to allow translation; there is the fact that the translator can’t and shouldn’t express emotion in rendering the translation. It’s like reading a transcript except at least a transcript does not involve the pause to translate.

Translation itself is fraught with its own problems. Many years ago, I tried a case where my client spoke Vietnamese. I questioned. The translator converted my question to Vietnamese. My client responded and the translator brought that answer back to English. It was painful because the delay caused by the need for two pauses to translate seems like an eternity and makes even simple exchanges like: “State your name and address”, into lengthy exchanges. I was perhaps 3-4 minutes into the substance of my direct examination when my client’s son called out: “That’s not what she said.” In short, he was suggesting that the translator was mis-translating my client’s testimony. There were only three people in the room who could assay that allegation: my client’s son (not a party),  my client’s husband (who was bi-lingual) and the translator. The lawyers, judge and even my client were powerless. An exchange then took place in Vietnamese between client’s son and translator where they agreed that the translator was not really familiar with my client’s dialect. The judge looked at me and asked: “So what do you want me to do, counsel?” I asked to continue the matter to find another translator. Granted, but awkward to say the least.

I have defended the judges. Now a word for the parties who do not speak English. Most are embarrassed as they have lived through countless commonplace encounters where their correspondent demands they “Speak English!” They know that many people want to dismiss them as stupid or disingenuous because they don’t “Speak English.” The panel decision published on January 22 as 2025 Pa. Super. 14 makes the matter clear. A party who wants a translator, gets a translator and it is not the judge’s province to evaluate “need.”  42 Pa.C.S. 4412. Candidly, judges are not equipped to make those evaluations. Meanwhile, litigants need to at least apprehend the frustration that a trial judge endures where translation not only triples the length of the proceeding but diminishes the judge’s capacity to assess credibility. In cases such as this, where a party is threatened with exclusion from his/her household and possible criminal prosecution, judges want to get the full picture. Unfortunately, it’s just reality that even the best translation dilutes the effectiveness of the testimony in a setting where the law requires an assessment of whether there was credible fear of immediate bodily harm.