The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

In re: Standard Jury Instructions in Criminal Cases/
In re: Standard Jury Instructions in Civil Cases
SC05-1961/SC05-1999


THE COURT, SUB JECT TO JUST MAKING SURE MY COLLEAGUES AGREE, WE ARE GOING TO HEAR THE LAST TWO CASES WHICH ARE JUST TEN MINUTES EACH , NOW , BUT NOT TAKE A RECESS.THANK YOU. IF THE LAWYER S FOR BOTH THECIVIL AND CRI MINAL JURY INSTRUCTIONS COME UP, WE CAN HOPEFULLY DEAL WITH THOSETOGETHER. MY COLLEAGUES S A ID TO BE SURE THAT 20 DOESN'T BECOME 40. IT SEEMS LIKE WE HAVE A COMMON ISSUE HERE AND REALLY , WHATEVER WE DECIDE NEEDS TO BE SIMILAR OR EXACTLY EQUAL, SO WE ARE GOING TO DO , LET'S , YOU WILL PUT TEN MINU TES ON FIRST.OKAY.

MAY IT PLEASE THE COURT. JUSTICE , JUSTICES . I AM T E RRY TER RELL , CIRCUIT JUDGE IN THE FIRST CIRCUIT, AND HERE AS THE CHAIR OF THE FLORIDA SUPREME COURT COMMITTEE ON CRIMINAL CASES.

JUSTICE: LET'S GET TO THE ISSUES SINCE YOU DON'T HAVE M UCH TIME.

YES, SIR.

JUSTICE: WAS THERE APROBLEM IDENTIFIED THAT NEE DS TO BE CORRECTED?

YES, SIR.WE FILE D A MOTION IN RESPONSE TO THE COMM ENTS FROM THE F LORIDA ASSOCIATIONOF DEFENSE ATTORNEYS WHICHWE WOULD ASK THE COURT TO ACCEPT. OUR MEETING TO ADDRESS THOSE COMMENTS BY THE ASSOCIATIONOCCURRED ON MAY 12. WE FILED THE RESPONSE AND RECENTLY FILED THE MOTION.

JUSTICE: MY QUESTION IS , WAS THERE A PROBLEM WITH THE CURRENT PRACTICE IN THE COURTS, REGARDING JURY REACTIONS TO THE TRANSLATORS AND INTERPRETERS THAT HAD TO BE ADDRESS ED. IS THERE AN ISSUE IDENTIFIED THAT IS ENDEMIC TO THE STATE REGARDING TRANSLATOR S AND INTERPRETERS THAT WE NEED TO ADDRESS? IT SEEMS LIKE THE COMM ITTEE WAS OF TWO MINDS ON THAT ISH YURBS ONE PART SAYING THERE IS REALLY NO PROBLEM HERE -- ISSUE , ONE PART SAYING THEREIS REALLY NO PROBLEM HERE.

I THINK I CAN SPEAK ON BEHALF OF THE COMMITTEE. WE ARE HAVING EXPERIENCE IN SOUTH FL ORIDA ALREADY AND NOW HAVING EXPERIENCE IN NORTH FLORIDA WITH P ERSONS COMING IN AND PRACTICING FROM OTHER PARTS OF THEWORLD , AND SO IT IS AN ISSUE BUT NOT A DRAMATIC ISSUE , ALTHOUGH IN MY EXPE RIENCE IN MY PART OF THE STATE, ALTHOUGH THERE IS MORE EXPERIENCE IN TRIALS INVOLVING DEFENDANTS, WITNESSES AND DISCIPLINE.

CHIEF JUSTICE: WHAT HAPPENS NOW? YOU HAVE A CRIMINAL DOCKET. IF THERE IS A TRANSLATOR , ARE JU DGES JUST LE FT TO THEIR OWN DEVICES AS TO WHAT INSTRUCTION TO GIVE? ANOTHER BAR PUBLISH S THE JUDGE'S HANDBOOK. WE HAVE AN INSTRUCTION THAT WE GIVE TO INTERPERS IN CASES AND THE JUD GE IS IN CHARGE OF THE DINE A.M. INC-- OF THE DYNAMICS D URING THE TRIAL.

CHIEF JUSTICE: WHAT IS INSTRUCTED IF THEY DON'T AGR EE WITH THE TRANSALATION? ARE THEY TOLD ANYTHING?

THE COMMENTS SUBMITTED ALONG WITH THE MEMORANDUM , IT APPARENTLY HAPPENS OCCASIONALLY. THERE ARE A FEW CASES ON THE TOP. BUT WHE N IT DOES HAPP EN, I SUSPECT THAT LEARNED TRIAL JUDGES RES POND APPROPRIATELY.THEY WILL RECESS , BRING THE JUROR OUT , CON DUCT THE HEARING , MAKING A RULING AND GIVE DIRECTION.

JUSTICE: BUT AS IT IS DONE NOW, E ITHER IN OPENINGVOIR DIRE INSTRUCTIONS , THEY ARE NOT INST RUCTED ON THE ISSUE. THEY DON'T KNOW THAT THEY CANSKA QUESTION AND RAISE A HAND , SO IT ONLY COMES UP IN THE JURY SUMMATION.

JUSTICE: LET ME AS K A QUESTION WITH RESPECT TO PRO POSED JURY INSTRUCTION 211 , WHICH IS WHERE APPARENTLY --

THE TRANSCRIPT IS IN DISPUTE?

RIGHT , AND THEY ARE GOING TO ADV ISE THE JURY, AND IT IS UP TO THEM TO DEC IDE WHETHER THE TRANSLATION IS INACCURATE . DON'T WE HAVE A PROBLEM THAT YOU HAVE GOT FOUR JURORS WHO DON'T SPE AK THE LANGUAGE. WE HAVE GOT TWO JURORS THAT DO . AND HOW IS THAT JURY GOING TO MAKE A DETERMINATION AS TO WHICH IS ACCURATE ANDWHICH IS NOT ? IT SEEMS TO ME THAT ONE , THEY ARE GOING TO BE DEPENDENT ON WHAT THE TWO BILINGUAL JURORS SAY , AND HEAVEN FORBID IF THEY ARE IN DISPUTE.

THAT IS IN HERENT PROBLEMS IN ALL OF THESE SITUATIONS BUT THIS WILL REALLY IS NO DIFFERENT THAN ANY OTHERCASE WHERE THERE ARE IN E FFECT EXPERT WITNESSES. WE GIVE JURORS DIRECTION ALLTHE TIME FOR INST ANCE - -

JUSTICE: SHOULDN'T ANINTERPRETER BE CONSIDERED TOBE AN EXPERT WITNESS? AN EXPERT WITNESS IS --

THEY ARE .

JUSTICE: DEVELOPED. I UNDERSTAND THAT MAY BE THE ROOELT REALITY, BUT IT SEEMS -- THE REALITY , BUT IT SEEMS CONCEPTUALLY TO ME THAT WHAT INTERPRETERS ARE INTE NDED TO BE IS ME RELY TRANSL ATING FROM ONE LANGUAGE TO AN OTHER , AND THAT SOME BODY , OBVIOUSLY IS GOING TO HAVE TO SETTLE ON ME ANING .

HOPEFULLY THIS WOULD HAPPEN RARELY.WE NOW HAVE A L IST OF CERTIFIED INTERPRET HERBS. THE INSTRUCTIONS 2.-- INTERPRETERS. THE INSTRUCTIONS 2.10 TALKS A BOUT PARTICULARLY WHERE THE TRANSLATION IS NOT IN DISPUTE , AT LEAST A MONG THEPARTIES , WE ARE ENCOURAGING THE PARTIES TO TRY TO GET IT RESOLVED PRETRIAL WHERE IT DOES NOT OCCUR IN TRIAL. THESE INSTRUCTIONS AREDESIGNED TO DEAL WITH THE DYNAMIC WHERE A JUROR DU RINGTHE TRIAL , SUDDENLY REALIZES I DON'T THINK THAT IS WHAT IS BEING SAID.

JUSTICE: WHAT HAPPENS IN ANY OTHER AREA WHERE THERE IS A WITNESS TESTIFYING ABOUT A SPECIALTY THAT THEJUDGE AND THE ATTORNEYS KNOW LITTLE OR NOTHING A BOUT , BUT ONE OF THE JURORS HAPPENS TO KNOW AB OUT. IT IS A CH EMIST TALKINGABOUT CHEMISTRY, AND ONE OF THE JURORS KNO WS ABOUT CHEMISTRY AND SAYS I KNOW THAT TESTIMONY IS WRONG. THAT IS NOT THE W AY IT HAPPENS.IT HAPPENS THIS WA Y.

TYPICALLY I WOULD SUSPECT , JUSTICE CAN TERO , THAT THOSEISSUES WOULD BE ADDRESSED IN VOIR DIRE AND THERE WOULD BE AN EXPLORATION OF WHETHER ORNOT THE WITNESS OR THE JUROR COULD LISTEN TO THE TESTIMONY AND MAKE A DECISION BA SED UPON THEEVIDENCE AND FOLLOW THE COURT 'S INSTRUCTIONS .

JUSTICE: SO I SN'T A FOREIGN LANG UAGE JUST ANOTHER SPECIALTY THAT SHOULD BE INCLUDED WITH EVERYTHING ELSE? WITH THE SAME JURY INSTRUCTION THAT IT IS THE EVIDENCE BEFORE YOU THAT MATTERS.

I THINK ONE COULD MAKE THAT POLICY DECI SION. THIS COURT REQU ESTED BOTH THE CRIMINAL INSTRUCTIONS COMMITTEE AND THE CI VIL INSTRUCTIONS COMMITTEE TO PROPOUND PROPOSED INSTRUCTIONS IN THESE AREAS, WHICH WE HAVE DONE .

JUSTICE: AND HALF OF THE COMMITTEE SAID WE DON'T REALLY NEED IT BUT HERE IT IS ANYWAY.

WE HAD SE RIOUS CONCERNS ABOUT WHETHER THERE WAS ANY STATUTORY RULE OR OTHER REQUIREMENT FOR THESE RULES.

CHIEF JUSTICE: WE ASKED YOU TO COME BACK WITH THOSE , SO DON'T --

JUSTICE: BUT THE PROBLEMIS YOU YOU DIDN'T HAVE CASE LAW TO FOLLOW.

VERY LITTLE. SCATTERED ACROSS THE STATE.

JUSTICE: THAT IS WHAT I AM TRYING TO UNDERSTAND. WE ARE UNCERTAIN THAT WE WANT TO PROVIDE THESEBECAUSE WE DON'T HAVE GUIDING LAW AND W E DON'T MAKE THE LA W, O R THIS IS NOTA PROBLEM AT YOU WILL ALL, AND THE SI LLY BUNCH UP IN TALLAHASSEE ARE ASKING US TO DO SOMETHING THAT IS S T UPID .

MY READ OF THE DISCUSSION WAS THAT IT W A S A COMBINATION OF BO TH, IN ALL CANDOR.

JUSTICE: CAN I ASK ONE QUESTION. THERE SEEMS TO BE A LITTLE BIT BOTH IN THE CIVIL ANDCRIMINAL, WITH REGARD TO H OW. IF WE HAVE A RULE , HOW THEJURORS ARE SUPPOSED TO COMMUNICATE THAT, RAISE THEHAND OR SLIP A NOTE.I AM CONC ERNED ABOUT SLIPPING NOTE S AND WHETHERIT WILL BE AFTER THAT WITNESS IS GO NE AND YOU CAN'T GO INTO IT. AND I AM JUST WO NDERING --

THAT IS WH Y THE COMMITTEE RECOMMENDED THAT WE MAIN WITH THE LANGUAGE PROPOSED IN THE -- THAT WE REMAIN WITH THE LANGUAGE PROPOSED IN THE INSTRUCTION , RAISE A HAND, AND THE JUDGE WOULDASK THE JUROR TO WRITE IT DOWN OR CONDUCT A N EXAMINATION IN THE COURTROOMO UT OF THE PRESS -- PRENS OF THE OTHER JURORS. THAT WOULD BE M Y EXPERIENCE THAT I AM FAMILIAR WITH.

CHIEF JUSTICE: JUSTICEBELL AND JUSTICE QU IN CE.

YOU ARE REALLY UNFAMILIAR WITH THE TAPE RECORDING. I UNDERSTAND WHEN WE HAVE UNDERCOVER ACTIVI TY AND YOUYOU HAVE A TAPE RECO RDING AND SOME OF THEM ARE HARD TO UNDERSTAND. WHEN THEY ARE IN ENGLISH WE RELY ON A JURY TO INTERPRETWHAT THE TRANSCRIPTION MAY BE. THAT PROBLEM BE COMES MORE PRONOUNCED IF THECONVERSATION IS IN A LANGUAGE OTHER THAN ENG LISH , FOR SOME. IS THAT WHAT THIS IS INTENDED TO ADDRESS?

YES, SIR .

JUSTICE: I AM MORE CONCERNED ABOUT THE PROBLEM THAT WE HAVE, I F YOU HAVE THE STATE WITH A TRANSLATION AND THE DISSENT HAS A TRANSLATION, AND THESE INSTRUCTIONS SEEM TO SAY THAT WE ARE LEAVING IT UP TO THE JURY TO DET ERMINE WHICHOF THE TRANSLATION S?

AS WITH A NY OTHER EXPERT WITNESS SITUATION, HA THATO CCURS IN COURTS IN THIS STATE EVERY SI NGLE DAY.

CHIEF JUSTICE: WE HAD ACASE THAT HAD TO DO WITH A TRANSCRIPT OF A TAPE REC ORDING, AND I THINK IN GETTING GUID ANCE FROM THE OTHER FEDERAL COURTS, THAT WE ACTUALLY SAID THAT, WHEN THERE WAS COMPETING TRANSLATING, THAT THE JUDGE, THAT THAT OUGH T TO BE AN ISSUE FOR THE JUDGE TO DECIDE RATHER THAN THE JURY , AND MY CONCERN IS, IF WE LEAVE TOO MUCH , LIKE IN A FOREIGN TRANSLATION T O AJURY, THAT THERE IS GOIN G TO BE MORE REA SON FOR PREEMPTORY CHALLENGES OF FOREIGN , YOU KNOW , SOME BODY WHO SPEAKS TWO LANGUAGES , BECAUSE LAWY ERS WILL SAY, WELL, THEY WILL HAVE OTHER KNOWLEDGE.

THAT IS A IN HERENT UNDERLYING PROBLEM IN THIS ISSUE. I SUGGEST THAT YOU MAY WANT TO, AND I AM NOT SPEA KINGFOR THE COMMITTEE ON THIS , B UT YOU MAY WISH T O EXCLUDE 2.11 AND GIVE F URTHER DIRECTION ABOUT HOW TRIAL JUDGES SHOULD DEAL WITH THAT ISSUE AS A MATTER OF LAW. THAT MAY BE AN APPROPRIATE RESPONSE .

JUSTICE: WHAT WOULD THEJURY, THE REASON THIS CONCERNS ME IS WHAT WOULD BE THE BASI S FOR THE JURY TO MAKE A DETERMINATION AS TO WHI CH OF THOSE TRANSCRIPTIONS --

THEY WOULD LISTEN TO THE TRANSLATORS. THEY WOULD CONSIDER THEIR EXPERIENCE AND DHEEN OR , JUST LIKE WE DO -- DEMEANOR , JUST LIKE WE DO WITH EVERY OTHER EXPERT WITNESS IN A TRIAL.WE HAVE EXPERTS SAY , FOR INSTANCE, IN A MEDICAL MALPRACTICE CASE , THIS WAS MEDICAL MALPRACTICE AND THE OTHER EXPERT WOULD SAY NO .

JUSTICE: PART OF THE PROBLEM IS IF WE ALLOW A KEYAGREEMENT , AND WE ALLOW THEJUDGE TO MAK E THE DETERMINATION OF WHAT WAS SAID, AND WE ALLOW THE JUDGEDETERMINE THE ISSUES IF YOU HAVE A CONSTITUTIONAL ISSUE VERSUS A JURY DETERMINATION.

I THINK THAT IS A DE BATE HOW TO RES OLVE THAT , WHETHER IT A MATTER OF FACT FOR THE COURT TO RESO LVE OR FOR THEJURORS TO RESOLVE. WE HAVE AGREEMENTS FROM THE CDL AND HAVE RECOMMENDED THAT THE LANGUAGE US ED, THE LAN GUAGE REGARDING JURORS ' RAISING QUESTIONS IF THEYHAVE A CONFLICT , THE INSTRUCTION PROPOSES THE WORD "MAY" AND THE COMMENTFROM THE F ACDL PROPOSES THE WORD "MUST" AND THE COMMITTEE RECOMMENDS CHANGING IT TO USE THE WORD "SHOULD" CONSISTENT WITH THE LANGUAGE IN THE REASONABLE DOUBT INSTRUCTION .

JUSTICE: "SHOULD" IS KIND OF VAGUE. E ITHER YOU ARE ALLOWED TO DO SOMETHING UNDER THE RULES OR ARE PROHIBITED FROM DOING SOMETHING UNDER THE RU LES , BUT YOU ARE SAYING IF YOU DO IT , IT IS IN CONF LICT WITH HOW --

SOME JUDGES WOULD USE THEIR DISCRETION TO SAY YOUMUST OR YOU SHALL. THE LAST THIN G IS THE FACDLHAS REQUESTED THE LANGUAGE G IVING JURY INSTRUCTIONS S HOULD BE IN CLUDED IN INSTRUCTIONS 2 .10 AND 2. 11 . WE ARE IN AGREEMENT WITH THAT AS A COMMITTEE AS AWHOLE AND BELI EVE THAT INTHIS WAY IT CAN B E ADDRESSED B Y THE COURT PRIOR TO THE JURY GOING BACK IN THE JURY ROOM AND TALKING ABOUT IT WITHOUT GUIDANCE FROM THETRIAL JUDGE. THANK YOU.

JUSTICE: ONE LAST COMMENT.IS THERE ANY REASON THAT THERE SHOULD BE DIFFERENT INSTRUCTIONS IN ANY WAY , FROM C IVIL TO CRIMINAL AT ALL? CAN YOU THINK OF ANY REASON AT ALL?

NO.

CHIEF JUSTICE: THANK YOU VERY MUCH. A S MY COLLEAGUES HAVE SAID , WE WOULDN'T TAKE A BREAK UNLESS 20 BECAME 40 , BUT IT IS VERY HAR D TO CONTROL THIS GROUP HERE, SO MR . EVER MA N, AS YOU KNOW THAT -- MR , AS YOU KNOW THAT HAVING BEEN HERE, IT SO UNDS AS THOUGH YOUR SUGGESTIONS HAVE BEEN A GREED TO BY JUDGE TERRELL AND THE COMMITTEE.

CORRECT. MAY IT PLEASE THE CO URT. MICHAEL EFFERMAN ON BEHALF OF THE FLORIDA ASSOCIATION FOR CRIMINAL DEFENSE LAWYERS AND SEATED WITH ME IS THE CO-CHAIR OF THE FACDL AMICUS COMMITTEE.I WOULD LIKE TO ADDRESS INSTRUCTION 2.11, AND IT ISTRUE THAT WHEN WE HAVE AN ENGLISH TAPE THIS COURT SAID IN MARTINEZ IF THERE IS A TRANSCRIPT MADE OF THAT TAPE AND A QUES TION AS TO ACCURACY OF THAT TRANSCRIPT , PRETRIAL THE COURT MUST DETERMINE WHETHER OR NOT THETRANSCRIPT IS ACCURATE AND DECIDE THE ISSUE AND E ITHER GIVE THE TRANSCRIPT OR NOTGIVE IT, BU T OF COURSE WITHAN ENGLISH TAPE, THE TAPE ITSELF IS THE BEST EVIDENCE. WHEN WE HAVE A FOREIGN TAPE , THE COURTS HAVE SAID THIS IS A FOREIGN TAPE THAT IS NOT THE BEST EVIDE NCE. THE TRANSLATION OF THAT TAPE WILL BE THE BEST EV IDENCE IF THAT MAKES SE NSE. OBVIOUSLY THE JURY PROB ABLY CAN'T UNDERSTAND THE TAPE.THEY CAN ONLY UNDERSTAND THE TRANSLATION. WE ARE IN FAVOR O F 2.11 BECAUSE EVERY FEDERAL COURT THAT I FORM AWARE OF THAT HAS RULED ON THIS ISSUE HASSAID THAT, IF YOU HAVE TWO DIFFERENT TRANSLATIONS, TWO DIFFERENT INTERPRETATIONS OF WHAT THE TAPE SAYS, IT IS UP TO THE JURY TO DECIDE.

CHIEF JUSTICE: THAT IS CRAZY THOUGH! THERE IS NO WAY, UNLESS YOUHAVE THE KNOWLEDGE OF THE LANGUAGE, THAT YOU CAN MAKE AN INFORMED DECISION. I MEAN , I T , I MEAN , JUST BECAUSE THE FEDERAL COURTS DO IT , AND AGAIN IN DEFERENCE TO WHA TEVER MIGHT OCCUR IN OTHER AREAS , WE WOULDN'T, IF SOME BODY HAD A SCIENTIFIC BACK GROUND , SAY TO, YOU KNOW , IF YOU DON'T AGREE WITH WHAT THE EXPERT SAYS, JUST TA LK T O JOE SMITH, BECAUSE HE IS THE SCIENTIST , WHICH IS ESSENTIALLY WHAT WOULD HAPPEN I S THE PERSON THAT CAN UNDERS TAND THE LANGUAGE WOULD END UP CONTROLLING THE ISSUE FOR THE JURY, BECA USE HOW ELSE WOULD YOU MAKE THAT DETERMINATION?

MY QU ICK QUICK RESPONSE IS I WOULD ANSWER THAT IN TWO WAYS. ONE YOU COULD HAVE A POLICE OFFICER WHICH QUESTIONS AN INDIVIDUAL. THE POLICE OFFI CER IS BILINGUAL AND THE TRANSLATION OFFERED BY THE STATE IS FROM THE POLICE OFFICER AND THE DEFENSE OFFERS A DIFFERENT TRANSLATION. THOSE TWO TRANSLATIONS ARE GOING TO BE KEY IN WHAT THE DEFENDANT MACH SAID DURING THE INTERVIEW AND IN THAT SITUATION THE DEFENSE MAY ARGUE, LOOK , OUR TRANSLATOR IS OFF ICIAL AND YOU SHOULD BE LEAVE OUR TRANSLATOR OVER WHAT THE POLICE OFFICERSAID.

CHIEF JUSTICE: WHAT IF THE JUDGE MAKES THAT DECISION?

IF THE JUDGE MAKES THAT DECISION AND RULES IN FAVOROF THE STATE , A T THAT POINTTHE DIFF ERENT TRANSLATION WILL NOT BE PRESENTED TO THE JURY AND THE DEFENSE WILL NOT BE ABLE TO MAKE THE ARGUMENT THAT PERHAPS THIS IS A DIFFERENT DIALECT OF A DIFFERENT LANGUAGE. PERHAPS IT IS SP ANISH BUTSPANISH IS SPO KEN DIFFERENTLY IN SOUTH AM ERICA THAN IT IS IN EUROPE AND OUR TRANSLATOR IS CERTIFIED IN THIS PARTICULAR DIALECT AND THIS PARTICULAR AREA.

CHIEF JUSTICE: HAS IT HAPPENED?

IN THE FEDE RAL COURTS, APPARENTLY AT LEAST THE INSTRUCTION HAS BEEN APPROVED BY -- JUST S KUS ISN'T THAT A LI TTLE DIFFERENT --

JUSTICE: ISN'T THAT A L ITTLE DIFFERENT PROBLEM THAN HAVING A TAPE TO W ORK WITH THOUGH?

I AM SO RRY ?

JUSTICE: ISN'T THAT A LITTLE DIFFERENT PROBLEM AS OPPOSED TO HAVING A TAPE AND WHAT THE TAPE SAYS, BECAUSE THE TAPE IS G OING TO BE THERE IN THE COURTROOM.

THE JURY , OF COURSE , WON'T BE ABLE TO UNDERSTAND THE TAPE.

JUSTICE: I UNDER BUT IS THAT NOT DIFFERENT THAN APOLICE OFFICER ATTEMPTING TO RELATE HIS TRANSLATION A S MORE OF A FACTUAL DETERMINATION THAN IT IS IF YOU HAVE A TAPE OF WHAT NO CARRIER RING CONNECT 115200 SAY BOTH VERSIONS MUST BE GIVEN TO THE JURY AND THE JURY WILL DECIDE , SO THEREIS NO REASON FOR THE J URY NOT TO ADOPT 2.11.

CHIEF JUSTICE: SO IS THE ISSUE ABOUT WH AT THE QUALIFICATIONS ARE OF THE TRANSLATOR, C AN THE JUDGE MAKE A DETERMINATION ON WHETHER , NOW THAT WE HAVE CERTIFIED TRANSLATOR S , THAT IT HAS TO COME THROUGH A CERTIFIED C OURT TRANSLATOR , OR YOU DON'T TH INK THAT FOR DUE PROCESS CONCERNS THATYOU COULD IMPOSE THAT FOR A DEFENDANT ? DO YOU THINK A DEFENDANT HASTHE RIGHT TO THE IR O WN TRANSLATION?

SURE. I THIN K A GOOD DEF ENSE ATTORNEY IS ALWAYS GOING TO GO AHEAD.

CHIEF JUSTICE: SO THATWOULD MEAN I N THE COURTS,TOO, YOU ARE GOING TO HAVE THE ABILITY TO SAY WE ARE NOT GOING TO AG REE WITH THEOFFICIAL COURT REPORTER?

IF THERE IS A TAPE COMING I N IN A FOREIGN LANGUAGE AND THE STATE IS OFFERING THEIR VERSION OF WHAT THAT T APE SAYS, I THINK IT IS INCUMBENT UPON THE DEFENSEATTORNEY TO MAKE SU RE THAT THAT ATTORNEY IS ACCURATE .

JUSTIC E: I THINK PART OF THE PROBLEM THAT YOU YOU RUN INTO , ESPECIALLY IN THE D RUG CULTURE , THERE IS S LANG AND C ODE WOR DS U SED ALL THE T IME MAY NOT BE SOMETHING YOU WOULD SE E IN THE LANGUAGE DICTIONARY, SO THERE ARE DISPUTES OVER THAT IN CULTURE.

I N M Y LAST SE CONDS , FACDL A LSO WOULD REQUEST THAT EVERY TIME THERE IS A S INGLE LANGUAGE TRANSL ATION, THAT THE INSTRUCTION REGARDINGTHE JURY BEING ABLE TO QUESTION THE ACCURACY OF THAT TRAN SLATION , THAT INSTRUCTION SHOULD BE GIVEN. WE THINK IT IS VERY IMPORTANT THAT, IF THE JUROR HAS SOME --

JUSTICE: H OW WOULD THE JURY DO THAT? HOW WOULD THE JUROR M AKE KNOWN HIS OR HER UNEASINESS WITH THE TRANSLATION , WITHOUT THIS SPILLING OVER INTO THE JUROR THAT IS THERE?

I THINK THE COMMITTEE SUGGESTED RAISING YOUR HAND.WE HAVE NO PROBLEM WITH.THAT I THINK IF THE COURT HAS ALLOWED NOTE TAKING, THEN WRITING DO WN A NOTE ANDGIVING IT TO THE BAILIFFWOULD BE MAYBE M ORE DISCREET , BUT EITHER WAY, I THINK IF THE JURO R HAS THAT QUESTION,IF THERE IS GOING TO AND FOREIGN LANGUAGE TAPE PLAYED , THE JURORS SH OULD BE TOLD THAT THEY MUST BRING ANY DISCREPANCY IN THE TRANSLATION TO THE ATTE NTION O F THE COUR T.

CHIEF JUSTICE: BUT IT HASTO BE DONE IMMEDIATELY, BECAUSE UNLE SS THERE IS DIGITAL WH ICH WOULD THEN GETBOTH, WOULD HEAR B OTH THE SPANISH AND THE ENGLISH , THE O NLY OFFICIAL VERSION WOULD BE THE ENG LISH, SO UNLES S IT IS IMMEDIATE.

I AG REES . IF THE INSTRUCTION NEEDS TO BE AME NDED TO SAY THE COURT N EEDS TO IMMEDIATELY LET THE JURY KNOW , I WOULD AGREEWITH THAT, BUT PERHAPS THE DEFENSE ATTORNEY DID NOT GET ANOTHER INTERPRETER AND PERHAPS THE DEFENSE ATTORNEY IS NOT A WARE THAT THERE IS A DIFFERENT TRANSL ATION. IF THE JURY IS WEAR OF A DIFFERENT TRANSLATION , THE PARTIES NEED TO DEAL WITH IT RIGHT AWAY AND MOVE O THEY CAN GO TO THE SIDE BAR AND ITHINK IT IS CITED IN THE MATERIALS WH ERE THE TRA NSLATOR S AGREE THAT THE JUROR'S INTERPRE TATION WAS CORRECT AND IN THAT SITUATION , OF COURSE, WE WANT THE ENTIRE JURY TO BE TOLD THAT , YES , THIS INTERPRETATION WAS NOT RIGHT ORIGINALLY AND WE ARE GOINGTO GO AHEAD AND CHANGE THAT,BUT IT IS BETTER FOR THE PARTIES TO HAVE KNOWLEDGE OF THE IS SUE AND BE ABLE TODEAL WITH IT AT THAT TIME AS OPPOSED TO HAV ING THE ISSUE COME UP LA TER. THANK YOU VERY M U CH FOR YOUR CONSIDERATION.

CHIEF JUSTICE: JUDGELOUIS.WE WILL GO , ALL BY YOURSELF.

MAY IT PL EASE THE CO URT. TERRY LOUIS , CIRCUIT JUDGE HERE IN THE SECOND CIRCUIT. I DON'T KNOW HOW MUC H I CAN ADD TO WHAT YOU HAVE ALREADY ASKED.

JUSTICE: CAN YOU IDENTIFY ANY PROBLEMS YOU HAVE SEEN IN THE SECOND CIRCUIT ANDHOW YOU DEAL WITH THOSEPROBLEMS?

I WILL SAY YES. LET ME SPEAK ON BEHALF OF THE COMMITTEE.WE DID SEE A PROBLEM A C ROSS THE STATE ANECDOTAL EVIDENCE,IF YOU WILL . THAT THERE IS NO INSTRUCTIONRIGHT NO W, AND THE JUDGE WILL JUST HAVE TO WING IT BASICALLY IF YOU COM E IN ANDYOU HAVE THAT SITUATION. YOU MENTIONED , I THINK JUSTICE WELLS, ABOUT WHEN YOU HAVE GOT FOUR JURORS THAT S P EAK ENGLISH AND T WOTHAT SPEAK S P ANISH , THEY AREGOING TO HAVE TO RELY O N THOSE TWO. WHAT IF THOSE TWO DOIS AGREE ? -- TWO DECIDES AGREE ? -- DISA GREE ?

JUSTICE: AND ASSUMING THE EXPERT TESTIMON Y THAT THE JUROR MAY DISPUTE BECAUSE HE HAS THE SAME KNOWLEDGE, SHOULDN'T IT BE THAT THE TRANSLATION THAT YOU SEE IS THE OFFICIAL REC ORD AND YOU MUST RELY ON THAT, EVEN I F YOU DISPUTE IT?

I THINK THAT IS CRUCIAL, AND THANK IS CONSISTENT WITH BOTH THE CRIMINAL AND THE CIVIL, THAT AT THE VERY LEAST , EVE N IF YOU DON'TSPEAK THE LANGUAGE , YOU MAY SPEAK A LITTLE BIT OF IT OR UNDERSTAND A LITTLE BIT OF IT, THE RE IS A TEMPTATION TO SAY I DON'T THINK THAT ISRIGHT, SO THERE SHOULD BE AT LEAST AT AUTHORITATIVE INSTRUCTION TO THE JURY THAT WE WANT YOU TO CONSIDER ALL OF YOU , CONSIDER THE SAME EVIDENCE .

JUSTICE: WOULDN'T THAT ADDRESS THE CHIEF JUSTICE 'SCONCERN ABOUT PREEMPTORY CHALLENGES OF PEOPLE WHO SPEAK FOREIGN LANG UAGES, BECAUSE NOW IT WOULD B E IRRELEVANT IF YOU SPEAK F OREIGN LANGUAGE, YOU STILL HAVE TO CONFORM TO THEOFFICIAL TRANSLATION?

WELL , I THINK THERE WAS A CASE IN WHICH JUSTICE KENNEDY TALKED ABOU T HE WAS ADDRESSING THE CO NCERN THAT THEY WERE KNOCKING OFF OF THE JURY, FOREIGN-SPEAK PERSONS, AND HE SA ID THAT IS ONE WAY TO ADDRESS THE CONCERN OF AN ATTORNEY I S TO LET THEM AD DRESS IT VOIR DIRE.

CHIEF JUSTICE: THEY ACTUALLY SAID STA TING A PROSECUTOR 'S CONTINUING TO STRIKE BILINGUAL JURORS DESPITE THE FACT THAT A BILINGUAL JUROR COULD DISPUTE AN ENGLISH INTERPRETATION, SHOULD BE TAKING INTO ACCOUNT WHEN DETERMINING WHETHER THESITUATION WAS RE A'S NEUTRAL. I THINK THAT WOULD SPEAK TO ALL JURORS WHO SAY --

JUSTICE: BUT YOUR SITUATION DO ESN'T ADDRESS MR PROBLEM ADDRESSING THE FACT THAT THERE ARE TWO DIFFERENT TRANSLATIONS , ONE F RO M THE DEFENSE AND ONE FR OM THE PLAINTIFF.

THAT IS TRUE THAT THE COMMITTEE DID NOT ADD DRESS THAT -- ADDRESS THAT EXAMPLE.THE DEFENSE LAWYER AND THE PLAINTIFF 'S ATTORN EY AND THE DISAGREEMENT BETWEEN THE LAWYERS.THIS WOULD ONLY ADDRES S THAT SITUATION IN WHICH THERE AREJURORS.

CHIEF JUSTICE: BUT WHAT IF YOU HAVEN'T CONSIDERED THAT AS AN EXPERIENCED TRIAL JUDGE.DO YOU THINK THAT IS A KIND OF THING WE WANT JURORS TO BE DECIDING BETW EEN TWO COM PETING TRANSLATIONS AS OPPOSED TO THE JUDGE MAKING THIS DECISION?

NOT SPEAKING ON BEHALF OF THE COMM ITTEE BUT AS A TRIAL JUDGE THAT PRACTICES, THAT IS A VERY INTRIGUING THIN G. AS A MATTER OF FACT, WE DID HAVE LAWYERS ON OURCOMMITTEE THAT S AID THEY HAD THAT. I FORGET NOW WHAT THE TRIAL JUDGE DID IN THAT CASE. I CAN SEE THE AR GUMENT FOR BOTH SIDES. I CAN SEE THE ARG UMENT THAT, WELL, IT IS L I KE AN EXPERT WITNESS AND YOU DO IT LIKE YOU WOULD ANY OTHER EXPER T WITNESS.ON THE OTHER HAND, AN OFFICIAL COURT INTERPRETER IS NOT AN EXPERT WIT NESS. IT IS THERE T O ASSIST THECOURT AND ASSIST THE JURY IN UNDERSTANDING, SO I CAN ALWAYS SEE THE ARGUMENT THAT IT SHOULD BE SOMETHING THAT SHOULD BE RESOL VED. WHETHER IT IS THROWN TO THE JURY JUST LIKE AN EXPERT WITNESS , I WOULD PROB ABLY LEAN IN FAVOR THAT THE COURT SHOULD RESOLVE IT , AND EVEN THOUGH WE ARE AT A DISADVANTAGE LIKE WE ARE ANYWHERE ELSE , IF WE DON'TUNDERSTAND THE LANGUAGE OR TECHNOLOGY OR SCIENTIFIC PRINCIPLES, YOU STILL HAVE TO MAKE THAT DECISION WHEN YOU DECIDE WHETHER C ERTAIN EVIDENCE COMES IN UNDER THE F RYE TEST .

JUSTICE: ISN'T THIS A L ITTLE DIFFERENT FROM THE TAPE BECAUSE THE TAPE MAY AND PIECE OF EV IDENCE ANDWITH REGARD TO DISPUTE OF WHAT THAT EVIDENCE DOES, A S OPPOSED TO TESTIMONY IN YOUR COURTROOM , BECA USE YOU HAVE A LOT OF TO OL S AVAILABLE , WITH ADDITIONAL QUESTIONING AND YOU CAN APPROACH IT IN SO MA NY DIFF ERENT WAYS IT SEEMS TO ME THAT THOS E ARE R EALLY DIFFEREN T. THEY MAY BE RELATED BUT THEY REALLY PRE SENT DIFFER ENT, UNIQUE PROBLEMS THAT ONE HASAN E ASIER SOLUTION BY JUST ASKING MORE QUESTIONS ABOUT WHATEVER IT IS ABOUT THAT WORD THAT MAYBE IN DISPUTEOF THE WITNESS , THEN A COMMON SOLUTION , BUT THE TAPE, THE TAP E IS A DIFFERENT ANIM AL.

I AGREE. IT IS A DIFFERENT THING. I SUPP OSE YOU COULD HAVE OTHER AVENUES THERE TO QUESTION THAT, TOO , AND IGUESS THE KEY QUESTION IS ARE YOU GOING T O RESO LVE THAT BY L ETTING THE JUDGE HEAR ALL THE EVIDENCE AND THE TESTIM ONY AND COME UP WITH THE OFFI CIAL VERSIONTHAT GO ES TO THE JURY , ORWILL YOU LE T THE JURY JUST DECIDE FROM ALL OF THE COMPETING?

JUSTICE: WHAT DO YOU DO ON APPEAL? THAT COULD BE THE KEY QUESTION, THE KEY WORD. WHAT DO YOU D O ON SUFFICIENCY OF THE EVIDENCEIN THESE CASES, IF YOU DON'THAVE?

I THINK YOU PRES UME THE TRIAL COURT IS CO RRECT .

CHIEF JUSTICE: JUSTICE BELL HAS A QUESTION.

IS THERE ANY REASON THE C IVIL AND CRIMINAL SHOULD NOT READ EXACTLY THE SAME ?

I DO N'T THINK SO. I MEAN , I HAVE HEARD DISCUSSIONS IN TE RMS OF JURORS ASKING QUESTIONS, ANDI THINK THERE I S A TENDENCY FOR FOLKS INVOLVED IN CRIMINAL LAW TO THINK OR NOT BE AS RECEPTIVE TO JURORQUESTIONS IN GE NERAL , BUT I PERSONALLY DON'T SEE A DIFFERENCE.

CHIEF JUSTICE: THANK YOU VERY MUCH . APPRECIATE THE WORK OF BOTH THE STANDARD, I KNOW THAT CRIMINAL JURY INST RUCTION COMMITTEE HAS BEEN VERY A CTIVE THIS YEAR AT OURREQUEST , AND APPRECIATE JUDGE TERRELL , YOU HAVING TAKEN OVER , AND YOU WERE CHAIR OF THE CIVIL, NO , YOU ARE JUST HERE AS SORT OF THE, OKAY. WELL , HE DID A GOOD JOB IN SENDING YOU AND THANK YOU VERY MUCH. THE COURT WILL BE IN RECESS UNTIL NINE O'CLOCK TOMORROW MORNING.

MARSHAL: PLEASE RISE .