Translation Issues in Witness Statements

GETTING AFFIDAVITS RIGHT ACROSS BORDERS

In cross-border cases, how a witness expresses themselves can be just as important as what they say. In cross-border cases, especially those involving non-English speakers, the precision and nuance of testimony can be lost when affidavits are drafted in English. Fiona shares insights from a recent catastrophic injury case in Germany and explains why bilingual expertise and accurate translation are critical to a strong legal outcome.

 

In this episode, Fiona discusses:

• how cross-border cases demand careful witness handling
• why English fluency isn’t always enough for court testimony
• the risks of preparing affidavits in English for non-native speakers
• how and why to use NAATI-accredited translators
• the legal and strategic value of giving witnesses their voice—literally

 

VIDEO SCRIPT

I’ve been in Hamburg for the last 2 weeks meeting with witnesses gathering evidence in a catastrophic motor accident case.  It has turned out to be professionally one of the most intense 2 weeks of work I’ve ever done, 13 witness statements in 12 days. It is a case where all the relevant witnesses are German.  The issue of in what language to prepare witnesses statements is at the forefront of my mind at the moment.  That is the topic of this video today.

 

Most Europeans these days, speak excellent English.  Much better than my German and most people have a level of proficiency in English such that they are able to get their message across.  However, this level of function is quite different to the level of English required when giving evidence in Court.

 

Court cases, especially those requiring complex technical evidence for example about the working of machinery, are about the detail.  It is the detail in a witness’ evidence that makes it believable. When you speak a foreign language, even though you might be able to make yourself understood, it is often a compromise from the way you would express things in your native language.  I certainly find that in German.  I look for the word that I know, rather than the word that precisely describes what I want to say.  This is a problem for a witness where the description of a conversation or an event needs to be precise.  The language you use when you use your mother tongue is generally a lot more nuanced and detailed.

 

I know this from my own experience.  I am much more comfortable and confident expressing my thoughts in English even though I can get by pretty well in German.  It’s also tiring operating all day in German because I don’t do it all the time.

 

Add cross examination to this where the questions are long, often convoluted, and require exact answers.  It requires a good deal of concentration in English to follow what is going on, it can be a recipe for disaster for a witness whose first language isn’t English, even though their English might be excellent.

 

For this reason, I usually prefer to prepare affidavits in German or in the native language of the witness and have them translated into English for the court.  Where the language is German, I prepare them myself, however, for any other language, I work simultaneously with a translator so that the witness isn’t hampered in their story by having to compromise in their choice of words or in the detail of their description.

 

If you start out with an affidavit drafted in English then you have essentially made the decision for that witness to give their evidence in English in court, including under cross-examination.  Courts generally want witnesses to give evidence in English because it is easier and quicker for them.  Interpreting a witness’ evidence in court slows the evidence down, but the court’s preference for efficiency isn’t necessarily the best for your witness or your case.  And the problem is, you can’t move back into the native language once you have started out in English, whereas you can easily move into English if desired at a later stage.

 

The evidence in chief is the key part of a witness’s evidence, you want it to be as nuanced and detailed as possible.  The best result will come from preparing an affidavit in their native language, unless they are truly bi-lingual.

 

All affidavits which are prepared in a foreign language must be translated by an accredited NAATI translator before they will be admitted to the court.  It’s important for a client to understand that even though a firm might operate bi-lingually, an in-house translation is not a substitute for an accredited one and will not be accepted.  The translator must swear their own affidavit as to the translation and their credentials must be included as part of that affidavit.  It is important to find translators you can work with and whose translations you trust.  I will talk about that in a different post.