La Ignorancia Es Atrevida: Hernandez v. New York and the Mistaken Exclusion of Bilingual Jurors

Finley B. Davis January, 2025

Mere knowledge of [a foreign language] cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful or desirable.¹

Introduction

The majority of violent crime in the United States is intra-racial.² Accordingly, most cases involving violent crime in criminal court involve same-race defendants and victims. This was true in Hernandez v. New York, ³ a 1991 case involving a Hispanic⁴ defendant and Hispanic victims.⁵ In Hernandez , the defendant, Dionisio Hernandez, fired a gun at his fiancé, Charlene Calloway, and her mother, Ada Saline, on a Brooklyn street.⁶ Calloway was injured but survived and the other bullets hit two bystanders who also survived.⁷ Hernandez was charged with two counts of attempted murder and two counts of criminal possession with a weapon.⁸

Given the likelihood of intra-racial crime, it is not surprising that the victim and defendant in Hernandez were Latino. Nor is it surprising both parties were monolingual Spanish speakers.⁹ In 1990, 52.6% of Latinos in Brooklyn were foreign-born and 88% of Latino households in New York City spoke predominantly Spanish.¹⁰ In addition to the victim and defendant, all the civilian witnesses in the case were also Hispanic, monolingual Spanish speakers.¹¹ The prosecution’s key witness, Ada Saline, was Hispanic and was expected to testify in Spanish.¹² A Spanish-English interpreter was present for the trial.¹³

Apart from the attorneys whose races are unclear, all other civilian witnesses in the Hernandez case were Hispanic and monolingual Spanish speakers.¹⁴ Yet, out of the twelve jurors selected, none were Hispanic and none spoke Spanish.¹⁵ The prosecutor struck all four Hispanic venirepersons.¹⁶ The defendant objected to these peremptory challenges and alleged a Batson ¹⁷ violation based on the claim that two of the Hispanic venirepersons were struck due to their bilingual abilities.¹⁸ The trial court rejected the alleged Batson violation and Hernandez was convicted.¹⁹ The state appellate courts affirmed his conviction and Hernandez appealed to the Supreme Court.²⁰ The Supreme Court affirmed his conviction as well, accepting the prosecutor’s explanation for striking the Hispanic jurors as race-neutral²¹ and thus sufficient to rebut the Batson challenge.²²

The prosecutor argued that he struck the two bilingual jurors for two reasons: first, he was not confident they could accept the official translation by the interpreter, and second, their demeanor during voir dire confirmed his distrust.²³ The prospective jurors’ alleged inability to accept official testimony, no matter how factually accurate it was, caused the prosecutor to strike them because, “in a case where the interpreter will be for the main witnesses, [the bilingual jurors] would have an undue impact on the jury.”²⁴ The prosecutor argued that he had no racially discriminatory motivation because the victims in this case were also Hispanic and Spanish-speakers.²⁵ Although the prosecutor’s use of peremptory challenges was upheld by the Supreme Court and Hernandez’s conviction was affirmed, I will argue that the State hurt its case by dismissing the two bilingual Hispanic jurors.

In this Note, I critique the government’s justifications for striking the two bilingual Hispanic jurors and argue that the dismissal of the two bilingual jurors weakened the government’s case. I assert that in cases with intra-racial defendants and victims (and here, all civilian witnesses), a jury that at least partially reflects this racial and linguistic makeup will be a better factfinder. The prosecutor strategically erred in dismissing these prospective jurors because bilingual jurors improve testimonial accuracy and boost cultural competency of the jury.

In Part I, I examine and analyze the Hernandez case with an emphasis on voir dire . In Part II, I discuss the distinction between language and race and argue that for Hispanic individuals, language is a proxy of race. In Part III, I argue that the prosecutor’s strategy in Hernandez ended up disadvantaging the government by striking jurors who could improve the accuracy of Spanish language testimony. In Part IV, I argue that bilingual jurors should be embraced in cases involving parties and witnesses who speak a language other than English because of the linguistic and cultural value bilingual jurors contribute, specifically translation accuracy and improved assessment of witness credibility.

I. Hernandez Decision

In Hernandez v. New York , the defense counsel objected to the prosecutor’s use of four peremptory strikes to exclude all the potential Hispanic jurors.²⁶ On appeal, Hernandez waived his objection to two of the potential Hispanic jurors as they both had siblings who were convicted of crimes.²⁷ Hernandez asked the court to consider whether the elimination of all Hispanic jurors amounted to a Batson claim.

Under Batson , the Supreme Court outlined a three-step process to evaluate an objection to peremptory challenges:

(1) a defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race, (2) the burden then shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question, and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.²⁸

The first step of a Batson claim requires the defendant to raise a prima facie case of discrimination and wait for the trial court to rule on the validity of the claim.²⁹ In Hernandez , however, before defense counsel could establish a prima facie case of discrimination, the prosecutor volunteered his explanation for striking the two potential jurors.³⁰ The prosecutor offered three reasons to rebut any claim of discrimination. First, the prosecutor he said he struck the two Hispanic jurors because he was not convinced they could accept the official English translation of testimony from the interpreter.³¹ This was because both potential jurors were bilingual – they were fluent in English and Spanish – and when the prosecutor asked if they would “accept the translator as the final arbiter of the witnesses’ responses,” both witnesses had “looked away from him and hesitated before responding to his inquiry.”³² Despite the potential jurors’ assurances that they could accept the official translation, the prosecutor felt that their demeanor contradicted their expressed abilities.

Second, the prosecutor argued that he did not know which jurors were Latino and that one of the jurors in question’s ethnicity was unclear.³³ Third, the prosecutor stated because his complainants and civilian witnesses were Latinos, he had no motivation to exclude Latinos from the jury.³⁴ According to the trial court, the three reasons outlined above accomplished the second step of a Batson claim requiring the prosecutor to articulate a race-neutral explanation for striking the jurors in question.³⁵

In the third step of a Batson claim, the court must decide whether the defendant has successfully proven purposeful discrimination. Here, the trial court accepted the reasons offered by the prosecutor to be sufficiently race-neutral.³⁶

Hernandez and his defense counsel appealed this decision to the New York Court of Appeals, which affirmed the trial court’s judgment, and then to the Supreme Court which also affirmed the trial court’s ruling.³⁷ However, both the New York Court of Appeals and the Supreme Court were divided on this issue.³⁸

The Supreme Court, in a four-person plurality written by Justice Kennedy, affirmed the trial court’s decision that the prosecutor’s use of preemptory challenges to strike all Hispanic jurors was not in violation of the Equal Protection Clause.³⁹ Under the Batson framework, the Supreme Court decided the first step – for the defendant to make a prima facie showing of discrimination – was moot as the prosecutor had preemptively offered a non-discriminatory explanation for his preemptory strikes.⁴⁰ In the second step, the Court explained that to find the explanation to be race-neutral, it “must be based on something other than race.”⁴¹ The Court accepted the prosecutor’s reasoning based on the language abilities and subsequent demeanor of the excluded jurors as race-neutral, explaining that even though such exclusion may have “resulted in the disproportionate removal of prospective Latino jurors,”⁴² it did not amount to the racially discriminatory intent needed to show a violation of the Equal Protection Clause under Batson . The Court accepted the prosecutor’s reasoning as race-neutral as they separated race from language abilities on the rationale that jurors who “might have difficulty in accepting the translator’s rendition of Spanish-language testimony and those potential jurors who gave no such reason for doubt . . . include[d] both Latinos and non-Latinos.”⁴³

The Court refused to address Hernandez’s argument that Spanish language and ethnicity are intrinsically linked because, in their eyes, it was not the bilingual abilities alone of the prospective jurors that caused them to be excluded, but rather their bilingual abilities and their demeanor as interpreted by the prosecutor:

I didn’t feel they could. They each looked away from me and said with some hesitancy that they would try, not that they could, but that they would try to follow the interpreter . . . I thought they both indicated that they would have trouble, although their final answer was they could do it. I just felt from the hesitancy in their answers and their lack of eye contact that they would not be able to do it.⁴⁴

In response to the scrutiny of the prospective jurors’ demeanor by the prosecutor, the Court noted that even if the majority of bilingual jurors would respond with hesitation, demeanor is still a race-neutral reason because to be race-neutral, the explanation need only correspond to a valid for-cause challenge.⁴⁵ Despite the fact that the explanation disproportionately affected Latinos, the Court concluded that the ability to conclusively accept the interpreter’s official translation was a valid race-neutral explanation, therefore there was no Equal Protection Clause violation.

Regarding the third step of Batson , whether the trial court appropriately found a valid or invalid show of discrimination by the defense, the Supreme Court stated that because this question was one of a finding of fact, it should be accorded “great deference on appeal.”⁴⁶ The Supreme Court further upheld the trial court’s decision by noting that the trial court was permitted to credit the prosecutor’s race-neutral justifications.⁴⁷ Although Hernandez advocated for an “independent” appellate review of the trial court’s dismissal of a Batson claim, the Court declined this request explaining it had “difficulty understanding the nature of the review petitioner would have us conduct.”⁴⁸

Justice O’Connor and Justice Scalia concurred with Justice Kennedy only to make the point that striking all Hispanic jurors based on their language ability was not sufficient to establish a Batson claim.⁴⁹ They argued that Hernandez failed to assert a valid equal protection violation under Batson , as Hernandez failed to show the required intentional discrimination based on race by the prosecutor.⁵⁰ Simply put, because the prosecutor’s justification for striking the jurors was his “uncertainty about the jurors’ ability to accept the official translation of trial testimony”⁵¹ the Equal Protection Clause was not violated because the disproportionate effect on the Latinos was not motivated by intentional discrimination. Justice Blackmun briefly dissented as did Justice Stevens who was joined by Justice Marshall. In Stevens’ dissent, he argued that a justification that has a “disparate impact” on minority groups is itself evidence of racially discriminatory reasoning and thus cannot be de facto “race-neutral.”⁵² Justice Stevens offered three reasons that the prosecutor’s explanation was invalid: the disproportionate impact on Spanish-speaking jurors, the availability of less drastic accommodations, and if the prosecutor’s concerns were valid the strikes would have been supported by a challenge for cause.⁵³

The most shocking part of the majority’s decision is the amount of weight and space the Court gives to the value of bilingualism while also upholding the prosecutor’s decision. Three pages of the opinion are dedicated solely to the importance and value of bilingualism. In that section, the Court wrote, “[l]anguage permits an individual to express both a personal identity and membership in a community . . . [b]ilinguals, in a sense, inhabit two communities.”⁵⁴ Despite its decision that a disproportionate impact on marginalized groups does not rise to an Equal Protection violation, the Court stated that “for certain ethnic groups . . . proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis.”⁵⁵ The Court acknowledged that the case took place in a community with a substantial population of Latinos that speak Spanish and that Spanish is considered by many their preferred language.⁵⁶

It is difficult to read this section and not pick up on some hostility or repudiation by the Court against the prosecutor’s choice. While it did not find a case of intentional racial discrimination, the Hernandez Court stated, “[o]ur decision today does not imply that exclusion of bilinguals from jury service is wise…”⁵⁷ It then stated, “Mere knowledge of [a foreign] language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable.”⁵⁸ The Court even offered alternative options to include bilingual jurors that were not raised by Hernandez such as allowing the bilingual jurors to discreetly advise the judge if they had any issues with the interpreter’s translation⁵⁹ or having all jurors listen to the interpreter’s translation through headphones to ensure the only testimony considered is that of the official translation.⁶⁰

The hostility throughout can be read as confusion from the Court as to why the prosecutor would strike these jurors. Justifications aside, the Court rebutted many points of the prosecutor’s argument. The Court analogized a bilingual mind to that of a high hurdler, in that the combining sprinting and jumping to pass the hurdle is akin to the command of two languages combined during thought.⁶¹ The Court went as so far as to point to scholarly comments that “people proficient in two languages may not at times think in one language to the exclusion of the other.”⁶² The Court also took issue with making an “easy generalization” of the bilingual mind and its cognitive processes, seemingly taking a shot at the monolingual prosecutor’s argument.⁶³

In Hernandez , the Court expanded Batson claims to include ethnicities, but ultimately upheld Hernandez’s conviction on the prosecutor’s justification being based on demeanor in addition to language abilities. Although the Court failed to determine how closely language tracks race when considering Equal Protection Clause violations, the Court hints that if the prosecutor struck a juror based solely on language abilities, they may be likely to find a valid Batson claim.⁶⁴

II. Language as a Surrogate for Race

Because of the Hispanic ethnicity’s unique connection to the Spanish language, striking jurors based on language creates the same harm as the exclusion of same-race jurors in cases of intra-racial crime. In Hernandez , the Court briefly acknowledged that they were not resolving the “more difficult question of the breadth with which the concept of race should be defined for equal protection purposes.”⁶⁵ Bizarrely, the Court proceeded to imply an answer to that question writing that for “certain ethnic groups and in some communities . . . proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis.”⁶⁶ The Court offers no guidance on which ethnic groups and communities they refer to, nor do they address whether the Hispanic community would fit in this analysis, despite the argument being offered by the petitioner.

Hernandez argued that Spanish-language ability bears an extremely close relation to ethnicity as evidenced by the high correlation between Spanish-language ability and ethnicity in New York.⁶⁷ At that time, Latinos made up 97% of people who usually speak Spanish and most Latinos claimed some knowledge of Spanish.⁶⁸ However, the Supreme Court reasoned that it did not need to address that argument because the prosecutor offered an additional justification for striking the potential jurors instead of solely rely-ing on language ability.⁶⁹ The Court hints that but for the additional justification, they may have been more inclined to find a valid Batson claim.⁷⁰

However, the Supreme Court – which at the time had no Hispanic justices – failed to realize how intrinsically the Spanish language and Hispanic ethnicity are linked, by birth and by immigration trends.⁷¹ Professor Juan Perea argues that “most bilingualism in the United States results from the person’s birth into a family or household where the primary language spoken is not English.”⁷² Most American bilinguals become bilingual by first acquiring the non-English language of their families, and then by learning English to adapt to the mainstream of American society.⁷³ For example, a child born to immigrants from Mexico may speak almost exclusively Spanish at home and exclusively English at school. American bilingualism is largely involuntary, and results directly from the circumstances of one’s birth.⁷⁴

When looked at this way, bilingualism is an immutable characteristic. Most bilingual people in the U.S. are born into those circumstances, causing Professor Juan Perea to label it a “birth-trait that is inextricably tied to national origin.”⁷⁵ Under this perspective, it would follow that Spanish-English bilingualism is inextricably interwoven with Latino or Hispanic origin. Based on the proximity of this relationship, any discrimination based on language ability especially for Spanish-speakers, should violate the Equal Protection Clause in a manner sufficient to support a Batson claim. The Court alluded to this when they asserted that language discrimination as a basis for a Batson claim could be “treated as a surrogate for race under an equal protection analysis,”⁷⁶ but declined to find that in Hernandez .

The link between bilingual Spanish-English speakers and national origin is due to the presence of immigrants from Spanish-speaking countries. Immigration into the United States has historically been based on the inclusion and exclusion of certain races and ethnicities. Before the 1950s, the number of Hispanic immigrants fluctuated based on factors such as xenophobia in public sentiment and job scarcity, in part due to the Great Depression.⁷⁷ These two factors often worked in tandem, with poor white Americans blaming immigrants for the lack of jobs then years later encouraging immigration to fill the need for unskilled labor positions.⁷⁸ The subsequent creation of the Bracero program⁷⁹ brought more than 3.8 million Mexican laborers into the U.S. on temporary contracts, only to deport them under a campaign known as “Operation Wetback.”⁸⁰

In 1965, Congress rewrote immigration law to have fewer restrictions on people coming from South America.⁸¹ Since then, the Hispanic American population has increased from 7.6 million in 1970 to 14 million in 1980 to 21 million in 1990, 35 million in 2000, 50 million in 2010, and most recently 58 million in 2017.⁸² With this flood of immigration came anti-immigrant hysteria. This anti-immigrant rhetoric propelled racist legislation, like California’s Proposition 187 into law in 1994.⁸³ The idea of the Latino as “Illegal Alien”⁸⁴ persisted and grew roots in the American Criminal Legal System. Latinos and Spanish became synonymous with undocumented immigrants and criminals who are “here to take advantage of the system.”⁸⁵

Perhaps one of the most prominent arguments for asserting that Spanish is a uniquely strong proxy for race is the breadth of the Spanish language. Unlike other ethnic groups, like Asian-Americans and Black Americans, Hispanics share one dominant language that is not English. This distinct characteristic has prompted the use of pan-ethnic⁸⁶ terms like Hispanic or Latino/a instead of country-specific terms like Cuban American. This de-nationalization may have roots in the historical and continuous racial discrimination immigrants faced. Widespread discrimination led Hispanic immigrants to be categorized as one group based on language and skin color despite Spanish-speaking immigrants coming from over twenty countries with distinct and unique cultures.⁸⁷ This pan-Latino group identity has allowed for levels of collective group action, specifically on political issues like immigration, at rates much higher than other minority groups. A study by Professor Kathy Rim found higher levels of political mobilization in Latino than in Asian communities, which was attributed to the absence of a single language in the case of Asian-Americans.⁸⁸

As the basis of the pan-ethnic label, speaking Spanish signifies solidarity among Hispanic Americans. As the Supreme Court notes, language allows for an expression of “both a personal identity and membership in a community, and those who share a common language may interact in ways more intimate than those without this bond.”⁸⁹ A shared language creates strong community ties and has become a symbol for a larger cultural, racial, and ethnic identity of Hispanic Americans. Spanish is a unifier for recent immigrants despite their different nationalities and for the children of these immigrants, Spanish has become ‘‘a cultural product valued by second and third generations of Hispanics, well educated, and wishing to remain faithful to their roots and the language.’’⁹⁰ Further, studies have found that beyond conversational Spanish, the effect of using Spanish-language media promotes a “sense of group consciousness among Latinos living in the United States by reinforcing Latino roots in Latin America and the commonalities between U.S. Latinos from different national backgrounds.”⁹¹

The use of Spanish has become a symbol of cultural identity in the Hispanic community, but this is not without costs. While Latino-Americans have recognized it as an ethnic referent and a foundation of the pan-ethnic group consciousness, so do non-Hispanic Americans, often relying on stereotypes and generalizations to do so. Spanish-speaking has allowed the dominant white society to associate all people from Spanish-speaking countries and their descendants into one community, often with negative stereotypes. In a way, this allows for the “othering” of Latinos, especially during times of tension over immigration. As Professor Mari Matsuda states:

The recent push for English-only laws, and the attack on bilingual education, may represent new outlets for racial anxiety now that many traditional outlets are denied. The angry insistence that “they” should speak English serves as a proxy for a whole range of fears displaced by the social opprobrium directed at explicit racism.⁹²

A message of “otherness,” which has often been attached to Hispanics, has been long rooted in the court system. Unlike monolingual English speakers, who are the preferred juror, witness, perpetrator, and victim, monolingual Spanish speakers are not afforded the same protections as their English-speaking counterparts. Spanish language testimony is often prejudiced by non-Spanish speaking jurors, attorneys, judges, and the court structure itself. For example, when testimony is conducted in Spanish, only the English interpretation is deemed evidence and will be contained in the official record.⁹³ Notably, the official record becomes the only record in the subsequent appellate proceedings and the original Spanish-language testimony essentially disappears.⁹⁴ This also makes it virtually impossible to challenge the accuracy of the translation, which the court simply presumes to be accurate. This practice exists to marginalize and stigmatize witnesses who speak Spanish, and Professor Juan Perea argues that this has grave legal consequences for Spanish speakers.⁹⁵ This kind of suppression exists in virtually every institution, from schools to prisons to workplaces to marginalize and stigmatize witnesses who speak langauges other than English.⁹⁶

This stigmatizing or “otherness” has been solidified in the institutional distrust of non-English languages, which I call “default monolingualism.” Default monolingualism describes the structure of American institutions and their preference for English – or their explicit discouragement and repression of non-English languages. In the law, there are hidden preferences for certain groups. For example, the “reasonable person” is inherently a white, heterosexual, wealthy man, as feminist and critical race theorists have pointed out.⁹⁷ I argue that this reasonable person is also a monolingual English speaker. Most white Americans have grown up in monolingual communities, digest-ing monolingual media, and being educated in a monolingual school environment.⁹⁸ Because of this, it is natural to view monolingualism “as the natural default setting and bilingualism as unfamiliar and complicated.”⁹⁹

The structural exclusion of Spanish is exemplified by Hernandez , where the English-speaking prosecutor repressed the use, or even knowledge of Spanish in the courtroom. This creates a “harsh paradox”¹⁰⁰ for bilingual speakers: if they are proficient enough in English to serve as jurors,¹⁰¹ they may still be disqualified based on their knowledge of the Spanish language. These harsh realities create huge incentives for multilingual people, especially recent immigrants, to assimilate into the preferred monolingual American identity. The feeling of otherness is exacerbated when one’s language, for many a link to their homeland and identity, is suppressed by social pressures and legal precedent.

III. Bilingual Jurors Protect Due Process

The inclusion of bilingual Spanish jurors would protect due process and ensure a fairer trial for all parties. Studies have shown that defendants of each race have higher acquittal rates when the jury pool contains more members of their own race.¹⁰² It may seem counterintuitive that I then argue that it would have been in the prosecutor’s best interest to include bilingual jurors in the Hernandez case. But this is where the nuanced intersection of race, ethnicity, and language is relevant in cases of intra-racial Hispanic crime. When, as in Hernandez , “the interpreter is the main witness,”¹⁰³ I assert that both the prosecution and defense will benefit from bilingual jurors as it would improve the reliability of testimony both linguistically and culturally.¹⁰⁴

Even the Hernandez Court agreed with the notion that a jury that reflects the parties’ diversity will improve due process. While the Court upheld the prosecutor’s strikes of the jurors in Hernandez , it – without prompting – offered two alternatives to include these jurors while address-ing the prosecutor’s concerns. The voluntary inclusion of these alternatives offers evidence that the Supreme Court saw value in bilingual jurors and disagreed with the prosecutor’s strategy for jury selection, even if they did not find his reasons for doing so to be unconstitutional.¹⁰⁵

A. Understanding the Prosecution’s Strategy in Hernandez

The prosecutor’s strategy in Hernandez, influenced by default monolingualism, diluted the government’s case. The court’s default language is English, however, in Hernandez with all civilian testimony being in Spanish, the prosecutor should have adjusted his strategy during jury selection to fit the unique circumstances of the case. In a default monolingual court, bilingualism introduces the unknown, which caused the prosecutor to reflexively oppose its inclusion. This opposition to the unknown, or the other is reflected in prosecutor guidelines from the early 1990s. One prosecutor training manual states, “You are not looking for any member of a minority group . . . they almost always empathize with the accused.”¹⁰⁶

In criminal cases, the strategy of the prosecution in jury selection is to “choose the twelve jurors most likely to return the verdict of guilt.”¹⁰⁷ However, this strategy, based on racist stereotypes, works in tandem with the prosecutor’s ignorance to the benefit of a diverse jury because he is comfortable with the default language settings of the court. The prosecutor explicitly states his desire to curb the “undue influence” the bilingual jurors may have.¹⁰⁸ Such influence according to the prosecution is akin to “doctors serving as jurors [who] might unduly influence a jury making a complex medical determination.¹⁰⁹ But the prosecutor is mistaken; this “undue influence” is not akin to that of a highly skilled and educated professional, but rather an immutable characteristic that can only enhance the reliability of witness testimony. The immutable characteristics of jurors support the venire being a fair-cross section of the community. The immutable characteristics of race, sex, national origin, and language are not hyper-specialized knowledge, but rather influence juror’s general demographic background.

The basis of the prosecutor’s concerns on control and influence both deal with how the jury will understand the evidence presented. Due to the possible bias exerted by the prosecution, or perhaps detrimental reliance on the prosecutorial handbooks that recommended the dismissal of minority jurors, the prosecutor assumed that default monolingualism would be the best way to regain control and limit the influence of Spanish in the courtroom. This may partly be because most lawyers were (and are still) white, “with little real knowledge of ethnic groups different from their own”¹¹⁰ and have little experience with bilingualism.¹¹¹ This lack of knowledge combined with harmful stereotypes creates a fear of Spanish and a grave undervaluing of bilingual jurors. Thus, it could be true that the prosecutor believed bilingual jurors would have an undue influence on the other jurors. The prosecutor did not understand that this “influence” may actually be a safeguard against his concerns of unreliable interpretation of the testimony by the jury. Bilingual jurors would increase the accuracy of the testimony during translation with linguistic and cultural knowledge.

B. The Linguistic Accuracy of Witness Testimony

Bilingual jurors improve the reliability of testimony by preventing improper translation and by providing a second interpretation. Scholars argue that defendants’ lack of ability to read over transcriptions of interpreters or review it later to ensure correct interpretation is a due process violation.¹¹² Because court interpreters are forced to make translation decisions in the moment with complete discretion and face no other review for their translations, mistranslations can arise. I argue that bilingual jurors can fill this niche by acting as a review of the translation by the interpreter.

First, let’s look at how bilingual jurors can improve translation accuracy. Imagine this scenario:

During a court proceeding for a charge of domestic assault and battery, the victim gets up to testify in Spanish, through an interpreter. In Spanish, she says “Él me pegó” which the interpreter translates as “He bumped into me.” In fact, the verb “pegar” in some contexts does mean to punch, but it also means to hit, to bump into, to beat, and to pull up.

In the moment, which translation should the interpreter use?

These translations vary in severity—to “beat” someone is far more violent than to “bump into” someone. In an alleged domestic assault and battery case, these differences can be wide-reaching. It is often the case that translations vary by dialect or by region. For example, in Mexican Spanish to say “to punch” is far more likely translated to “golpear.” ln these cases, if the interpreter chooses a translation of “pegar,” neither the judge, the jury, the attorneys, nor the defendant can review the accuracy of the testimony. But a bilingual juror may understand the victim’s testimony to mean, “he beat me.” In which case, they may be far more likely to find the defendant guilty of domestic assault, whereas monolingual English speakers on the jury who have only heard “he bumped into me” would be far less likely to find the defendant guilty. Because translation errors like these are so common, the more bilingual speakers in the courtroom, the more levels of review the translation will receive, resulting in a more balanced and accurate testimony without using any additional court resources.

C. The Cultural Interpretation of Witness Testimony

Context can give entirely different meanings to words; thus it is best practice for interpreters to consider the word’s context to translate the intended meaning.¹¹³ In cases of intra-racial victims, defendants, and witnesses, language (including demeanor and body language) may also be better understood by a bilingual juror for two main reasons. First, as the factfinder, bilingual jurors can apply the cultural context to the testimony and mannerisms of the witness to better determine a witness’s credibility. Second, if the jury is reflective of the community, it is likely that some jurors will share the same culture as the witness(es) or defendant(s) and provide more specific context beyond that of the interpreter.

As the factfinder, the jury must listen to all of the evidence, then decide what facts have been established from the evidence, and finally, make inferences from those facts to form the basis for their decision.¹¹⁴ In deciding what facts have been established by the evidence, jurors often have to decide how credible the witnesses are and how much weight should be given to their testimony.¹¹⁵ To make this determination of credibility, jurors are instructed to pay attention to certain aspects of the witnesses and their testimony. For example, the Ninth Circuit District Courts instruct the jurors to assess witness credibility based on factors like “the witness’s manner while testifying.”¹¹⁶

On the contrary, a court interpreter is far more limited in the factors they can consider while translating. As neutral parties, linguistic factors such as dialect, educational level, register, geographic variation, specialized or technical terms, and style can be considered to influence the interpreter’s choice of expression.¹¹⁷ The neutrality of the interpreter does not allow interpreters to make any judgments on the credibility of the testimony, despite the attention interpreters must pay to vocal intonations and body language. As a testament to the wide discretion of interpreters, the factors each interpreter considers are dependent on each interpreter’s style of interpretation; some interpret word for word, while some attempt to interpret an idea or message between languages.¹¹⁸

This is precisely where a bilingual juror can straddle the divide between court interpreters and monolingual jurors. A bilingual juror with full command of the language of the original testimony can interpret it in the context of factfinder, meaning they can take into context factors that interpreters must often ignore, such as the tone, nuance, and perceived level of credibility of the testimony.¹¹⁹ Bilingual jurors can exercise their language skills to receive the testimony directly from the source, including making direct assessments of the witness’s testimony, instead of assessing the nuance and tone of the interpreter.

Further, if the jury is truly reflective of the community, it is likely that some jurors will share the same culture as the witness(es) or defendant(s) and can provide more specific context beyond that of the interpreter. The inclusion of bilingual jurors can counteract any conscious, or sub-conscious, misinterpretation of tone and body language from monolingual English jurors by acting as a shield between the testimony and the bias of English-speaking jurors.

For example, the regular rise and fall of the Spanish intonation pattern, when accentuated by excitement, may be interpreted as harangue.¹²⁰ For example, during a riot in East Los Angeles, police overheard a young Mexican man attempting to quiet the crowd and wrongly assumed he was purposefully trying to incite violence and arrested him.¹²¹ The bias exemplified by the police action in this example is harbored subconsciously by many English speakers, including jury members. The more balanced the jury is linguistically, the less biased interpretations will be.

Similar to how non-Spanish speakers may misinterpret Hispanic dialects’ tone and cadence, an individual’s narrative style is highly dependent on cultural background.¹²² For example, in a narrative analysis of protective order applications, scholars found that Latinas try to tell “stories” about the abuse charges, and this narrative form often can be misconstrued by non-Spanish speakers. The study found that reports done in this preferred narrative way were less likely to be successful in front of judges.¹²³ The study proposed that the women would benefit from a cultural interpreter who understands how cultural backgrounds lend to the narrative approach preferred by Latinas. If these narratives were told in front of a jury made up of bilingual Hispanics, they may be more successful as the jurors would possess a cultural competency that may make these narrative reports easier to understand or more convincing than the rule-orientated ones preferred by monolingual English-speaking judges.

Ironically the voir dire during the Hernandez case embodies an example of the lack of cultural competency that I advocate for in the court system. As stated, the two prospective bilingual jurors were struck due to how their body language was interpreted by the prosecutor.¹²⁴ The prosecutor saw certain body language, like lack of eye contact, to indicate dishonesty.¹²⁵ Professor Juan Perea notes the Supreme Court case, Hernandez v. Texas , in which Hernandez (unrelated) set forth a cultural defense: that the victim had given him “ el ojo .”¹²⁶ This defense relied on the jury understanding the cultural difference between eye contact in white America and el ojo in Mexico:

Anglos have a big thing about eye contact being something positive. You can take a man’s measure by making eye contact . . . .Hell, in the Mexican community eye contact can kill you. It sends the other guy a message that says what the hell are you lookin’ at, and if you don’t like it, do something about it. In a bar that can lead to a killing.¹²⁷

As Professor Juan Perea explains, “[w]ithout the cultural knowledge possessed by Mexican Americans, Hernandez’s attempt to explain his behavior would fall on utterly deaf judicial and jury ears.”¹²⁸

Just as in Hernandez v. New York , the prosecutor’s lack of cultural competency likely led him to misinterpret the body language of prospective Hispanic jurors as dishonest. This is why the inclusion of racial minorities within the Batson framework is extremely important to fight prejudice in the legal system: without Batson challenges, prosecutors’ sub-conscious biases of racial and ethnic minorities can result in juries that lack cultural competency.

IV. Proposals

As Justice Kennedy alluded to in the Hernandez opinion, the case could have gone differently if the prosecutor had not raised additional race-neutral justifications for striking all Hispanic prospective jurors. The Hernandez Court declined to rule on the issue of language abilities as a proxy for race, yet this issue must be raised. I assert that Hernandez did not foreclose language abilities as a protected class under the Equal Protection Clause, and in the Hispanic community specifically, language must be legally recognized as a proxy for race.

There are also more pragmatic solutions to the issue in Hernandez of whether a bilingual juror could accept the official English version of the testimony, regardless of its factual accuracy. The trial court’s exclusion of the bilingual jurors is the most restrictive solution. It overlooks the argument that “[an] all-white jury simply may not understand the language involved in the case and may act on this misunderstanding to the detriment of the minority defendant” and fails to understand the value bilingual jurors bring to cases with non-English language testimony.¹²⁹ Bilingual jurors’ ability to flag translation issues would not have any undue influence on non-Spanish speaking jurors, as it only results in more accurate translations of the testimony.

The most inclusive solution is two-fold. The first step is simply to include bilingual jurors in intra-racial cases where the majority of civilian testimony occurs in a non-English language. Both prosecutors and defense attorneys should refrain from striking bilingual jurors in these cases. This is crucial in communities, like in 1991 Brooklyn, in which a specific dialect and culture were widely reflected in the community. The Trinch study of narrative protective orders for Latina victims found that victims benefited when there was an intermediary between the victim and the court. ¹³⁰ The proposed intermediary would convert the original narrative stories from victims of domestic violence into a structured affidavit.¹³¹

I argue that the inclusion of bilingual jurors has the same benefits as the intermediaries. Just as the intermediaries in the Trinch study are trained to convert interviews into a more easily understood written form, bilingual jurors are able to convert non-English language testimony into a culturally-informed translation. Bilingual jurors are ideal for this; instead of using public resources to find intermediaries which may vary by other factors, like sexual orientation, nationality, or gender, the best cultural interpreters are people who reside in the same community as the defendant, victim, and witnesses. The purpose of a jury trial is to be tried by a panel of peers, and in cases with intra-racial parties and monolingual non-English speakers, a diverse and bilingual jury will be the best factfinder.

While this strategy may seem obvious, it can only be used if attorney’s fully understand the value of bilingual jurors. The best way to educate attorneys is through regional training, focusing on attorneys operating in regions with high bilingual populations and monolingual non-English speakers. Here, because the Spanish language operates as a proxy for race, training structures similar to those on implicit bias can be used. For example, many implicit bias trainings focus on making race a salient point. By directly stating the relevance of race in a specific case, individuals suppress “automatic, stereotypic congruent responses in favor of acting in a more egalitarian manner.”¹³² The benefits of bilingual jurors and a focus on how testimony in Spanish affects the case, linguistically and culturally, must be at the forefront of trainings. It is imperative that this training is directed at both defense attorneys and prosecutors.

The second step is once attorneys begin to actively employ this strategy to include bilingual jurors in cases involving monolingual non-English speakers, the court must create a procedure for jurors to bring prospective translation issues to the court’s attention. I assert that to address this issue, courts should adopt the least-restrictive solution.

In Hernandez , the Supreme Court offered two alternative options to include bilingual jurors that are far less restrictive and extreme than pure exclusion. One solution offered is to have the interpreter be the “only person who hears the witness’ words and who simultaneously translates them into English, thus permitting the jury to hear only the official translation.”¹³³ This alternative does solve the issue in less restrictive means than exclusion of the prospective jurors, but fails to see the value of bilingual jurors in cases where “the interpreter is the main witness.”¹³⁴ Bilingual jurors have no access to the original language testimony and thus cannot raise any translation issues to the court and limits their ability to perceive witness credibility using cultural context.¹³⁵ Further, this solution institutionalizes the “othering” of languages other than English in the court system and prioritizes default monolingualism at a disadvantage to all parties in the case and the greater pursuit of justice.

The best solution offered by the court in Hernandez was allowing the bilingual jurors to discreetly advise the judge if they had any issues with the interpreter’s translation.¹³⁶ This allows for increased linguistic accuracy of the translation, as bilingual jurors can flag any mistranslations, ensuring more accurate testimony for all jurors, regardless of their language abilities. Unlike the first solution, it also allows for bilingual jurors to utilize cultural competency in addition to linguistic ability.

A. Clear Procedure is Necessary to Minimize Disruptions

The success of this solution hinges on a clear procedure for how and when a juror can flag what they believe to be a mistranslation of testimony. Author Sarah Clasby states that best practice is to instruct jurors to pass a written explanation to the judge after the testimony has concluded explaining the translation they take issue with.¹³⁷ From there, the judge may meet outside the ears of the jury with counsel to discuss the translation error. The juror who flagged the issue is not present at this point. If neither party objects, the trial can be resumed and the portion of the testimony at issue can be redone. If one party does object, the judge should then include the interpreter in the discussion to determine whether the line of questioning should be redone. The juror does not play any part in the interpretation of testimony until deliberations begin. As such, this solution advocates for bilingual jurors to only flag issues, not argue them. The ultimate decision to redo the line of questioning will be the judge’s and based on merit, however the juror’s objection should be recorded in the record in case of an appeal.

Without clear instructions, like the one detailed above, flagging suspected translation issues can cause unwanted disruption and prejudice. The case United States v. Perez ¹³⁸ illustrates what can happen when jurors have no clear procedure for flagging mistranslation. In Perez , a juror interrupted court proceedings to clarify what she thought was a mistranslation of the witness’s testimony by the interpreter. The exchange went like so:

DOROTHY KIM (JUROR NO. 8): Your Honor, is it proper to ask the interpreter a question? I’m uncertain about the word La Vado [sic]. You say that is a bar. THE COURT: The Court cannot permit jurors to ask questions directly. If you want to phrase your question to me- DOROTHY KIM: I understand it to be a restroom. I could better believe they would meet in a restroom rather than a public bar if he is undercover. THE COURT: These are matters for you to consider. If have any misunderstanding of what the witness testified the Court now what you didn’t understand and we’ll place the- DOROTHY KIM: I understand the word La Vado [sic]- I thought it meant restroom. She translates it as bar. MS. IANZITI: In the first place, the jurors are not to listen to the Spanish but to the English. I am a certified court interpreter. DOROTHY KIM: You’re an idiot.¹³⁹ The juror in Perez has no instructions as to when or how she should

bring her suspected translation error to the court’s attention, resulting in a hostile exchange between the interpreter and the juror and that juror being dismissed.

B. The Procedure for Jurors to Object to Mistranslated Testimony

When a juror can bring this issue to a judge’s attention is key. As illustrated in Perez , objecting during the testimony has some challenges, it may disrupt the testimony or force the juror to engage directly with the interpreter to clarify the translation.

After the juror’s dismissal in Perez , the judge explained to the other jurors that. . .if those of you who can in fact understand Spanish hear certain words differently that you understand the interpreter to relate them, then you may, when the witness is finished with his testimony, you may place your question, you may raise the question that you have with the Court. If the Court feels that it is a question that can be properly answered, then the Court will take care of attempting to get it answered.”¹⁴⁰ Had this procedure been clarified before the testimony, the heated exchange would have been unlikely to take place and the juror would not be dismissed.

Judicial preference and best practice seems to favor jurors objecting to a suspected mistranslation to do so after the testimony has ended. With written objections, it is most efficient to conduct this after the testimony is complete.

The manner of objection also must be clear to jurors. If jurors are instructed to object to any suspected mistranslations after testimony has completed, how should they raise the issue? The judge may allocate time after each testimony for jurors to verbally object to a portion of testimony and have that part of the testimony redone to clarify the issue. However, verbal objections still run into the same issues as objecting mid-testimony: it may result in a situation where the juror must argue directly with the interpreter in front of the judge and other jurors, leading to a prejudicial effect on the interpreter’s competency and on the testimony in general. Instead, any objections should be written in a note to the judge after the testimony has concluded.

A case illustrating a successful application of this solution is Santana v. New York City Transit Authority .¹⁴¹ In Santana , the defendant, a monolingual Spanish-speaker sued for injuries she sustained while riding the subway.¹⁴² During her testimony, a bilingual juror familiar with the dialect Ms. Santana spoke felt that the interpreter had mistranslated a key part of her testimony.¹⁴³ After the testimony, the juror wrote a note requesting permission to meet with the judge on this issue. The judge then met with the interpreter, the reporter, counsel, and juror separately from the rest of the jurors and allowed for the juror to explain his issue with the translation. The judge then allowed the trial to resume, and the witness was re-questioned to clarify the translation. This procedure minimizes disruption during the trial and any prejudice that could arise from the juror having to directly interact with the interpreter in front of the jury.¹⁴⁴

Conclusion

Hernandez v. New York exemplifies white Americans’ misplaced fear of non-English speakers as a result of default monolingualism. To his disadvantage, the prosecutor in Hernandez struck all bilingual jurors due to an implicit bias and misunderstanding about the value they would provide. He failed to see the cultural and linguistic value of bilingual jurors in cases involving a monolingual Spanish defendant, victim, and witnesses. The Supreme Court was clear when they dismissed the Batson claim here, upholding the prosecutor’s “race-neutral” reasoning that the prospective juror’s body language and their bilingualism made him doubtful if they could accept the English translation, no matter how factually accurate it was.

However, the inclusion of bilingual jurors would improve testimonial accuracy by providing another level of review instead of leaving an interpreter with sole discretion. Additionally, the cultural competency that bilingual jurors provide is invaluable, especially in cases where all testimony is in a non-English language. They may understand cultural norms and narration better and provide insight into the credibility of witness testimony based on body language which is highly influenced by one’s culture. The irony of the prosecutor misinterpreting the prospective jurors’ body language in the Hernandez case exemplifies the need for cultural competency. Perhaps if the prosecutor were better educated on the benefits of cultural competency in the courtroom, he would have better understood the natural demeanor of the Hispanic jurors.