A jury сonvicted defendant of one count of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). He was acquitted of three other counts of criminal sexual conduct. Defendant appeals as of right. We reverse.
The complainant, who was from Thailand, testified at trial through an interpreter. She testified thаt defendant raped her five or six times. Defendant testified that his sexual encounters with the complainant were consensual.
On appeal, defendant argues that he is entitled to a new trial beсause the interpreter interfered with his right to cross-examination. We agree. Defendant objeсted to specific instances of perceived improper translation and moved for a mistrial on this basis. The trial court denied defendant’s motion. The trial court’s grant or denial of a mistrial will not be reversed on appeal in the absence of an abuse of discretion.
People v Haywood,
As а. general rule, the proceedings or testimony at a criminal trial are to be interpreted in a simultaneous, continuous, and literal manner, without delay, interruption, omission from, addition to, or alteration of the matter spoken, so that the participants receive a timely, accurate, and complete translation of what has been said. 32 ALR5th 149, §71, p 466. Although occasional lapses will not render a trial fundamentally unfair, adequate translation of trial proceedings re
quires translatiоn of everything relating to the trial that someone conversant in English would be privy to hear.
United States v Joshi,
896 F2d 1303, 1309 (CA 11, 1990). The interpreter should not aid or prompt the primary witness in any way, or render a summary of what the witness stated.
State of New Jersey, in Interest of R R,
79 NJ 97, 117-119;
It is necessary, for the due course of examination, that the interpreter shall give to the witness the precise form and tenor of еach question propounded, and no more or less, and that he shall in like manner translate the precise expressions of the witness. As it is not supposed that court, counsel, and jury can follow him in thе foreign language, it is obvious that if he undertakes — as is too often done — to expound things to the witness in his own fashion, or to have any conversation with him beyond strict translation, no one can tell how far the testimony is reliably genuine, or how far it consists of what is admissible.
Here, the interpreter did not translate each question and answer, but, instead, had a conversation with the complainant that was not translаted for the trier of fact. The following exchange exemplifies this fact:
Q. [By Mr. Delling, defense counsel] That’s what I’m asking you, what days are we talking about?
A. Before.
Mr. Delling: May the record — your Hоnor, I’m just having a little bit of a problem with the fact that there’s a large exchange going on, and I’m getting a one word [response], before.
A. She said she was confused and I will try to explain to her.
Q. [By Mr. Delling:] So you’re not interpreting my question?
A. No, I interpreted your question, but she was confused so I was trying to mаke her understand what you was [sic] talking about that’s why it was a lot of questions.
An interpreter’s function is to
translate
the relevant statements and responses.
People v Ovalle,
The lack of an adequate translation is further illustrated by the following exchange:
Q. [By Mr. Delling] What does the term singsong mean?
A. Sing-song to her, she didn’t know how to put, how to explain to her husband. One time Keith brought Barbra [sic] and her . . .
Q. I didn’t ask about one time, I’m asking her what does sing-song mean to her; does she know what it means or not?
A. That’s what I’m trying tо explain to you after she explain to me. I’m trying to explain to you what it means. It’s long, long, long words, [а] long sentence.
Later, it appears that the interpreter directly responded to somе questions on the basis of her understanding of the complainant’s prior testimony:
Q. [By Mr. Delling] Okay, I’ll show you the transcript question being asked, how many times did you have sex with Keith?
A. I don’t think it’s more than ten times.
Q. She doesn’t know for sure; can you ask her that?
A. I’m not, I don’t know for sure.
Q. So it could be more, did you ask her or . . .
A. Oh, you want me to ask her?
A limitation on cross-examination preventing a defendant from placing before the jury facts from which bias, prejudice, or lack of credibility of a prosecution witness might be inferred constitutes denial of the constitutional right of confrontation.
People v Mumford,
It is true that violations of the right to adequate cross-examination are subject to harmless-error analysis.
Delaware v Van Arsdall,
Reversed and remanded for proceedings consistent with this opinion.