Evidence lost in translation

Japanese court cases using a translator have sometimes had to be retried because of errors in translation, writes Rob Gilhooly in Tokyo

THE legal team for Richard Hinds, the American musician convicted on Tuesday for the murder of Wexford student Nicola Furlong, will not reveal if they have any plans with regards to a retrial until next month.

However the legal team for James Blackston, who was given a three-year prison sentence for assaulting Nicola Furlong’s friend, have confirmed that they intend to appeal his sentence.

Court cases where a translator is used have occasionally ended up in a retrial situation because of errors in translation. Indeed, during the trial of Hinds, court room 416 at the Tokyo District Court was occasionally subjected to some real-life “lost in translation” moments.

Most were laborious and largely academic — on the fourth day it took five attempts and 10 minutes to correctly translate a defence witness’s name, profession, place of work, and other credentials.

Others were technical — the fifth day spluttered along as an interpreter struggled to keep up with another expert witness’s explanation in Japanese of the effects of an anti-anxiety drug called Sonarax.

The drug’s all-important ingredient, Alprazolam, was translated as “alphagram”, causing Judge Masaharu Ashizawa to instruct the translator to ensure that witnesses understood what actually was being discussed.

On one occasion the misinterpretation was just plain cringeworthy.

When Hinds took the stand, he proceeded to flaunt court protocol and directly addressed Ms Furlong’s flabbergasted parents, Andrew and Angela. A flustered-looking prosecutor requested that the defendant behave as all who take the stand are required: when addressing the court, look straight ahead at the bench.

“Just tell the judge how you feel,” came the translation. And within minutes Hinds was back looking at and addressing Andrew and Angela Furlong once more.

Unlike in the UK, Australia, and parts of the US, Japan does not have any organisation that oversees court interpreters. Rather, about 4,000 translators covering some 60 languages are listed on the supreme court’s files on a standby basis.

But being listed does not necessarily mean interpreters are qualified or have any basic training in law. In fact, there is no professional title or qualification for court interpreters in Japan.

The issue came more acutely into focus in 2009 when Japan’s lay-judge system was introduced and with it the necessity for court interpreters to cope with rapid-fire exchanges when foreigners took the stand.

Teething problems were at times more like full-blown toothache and the situation came to a head last year during the trial of a Japanese man charged with murdering a 22-year-old British woman, Lindsay-Ann Hawker.

The trial was strewn with errors, and while few could be said to be game changers, many failed to capture the moment or convey certain cultural nuances. Ms Hawker’s mother was called to the stand to state her family’s view that Tatsuya Ichihashi deserved the gravest punishment for raping and killing her daughter, before dumping her in a soil-filled bath tub on the balcony of his apartment.

Julia Hawker told the court she had been unable to take a bath for two years following the incident, which was translated into Japanese as “I can’t take back the two years”.

“I’ve studied many translations [in different fields], but nothing exceeds court interpretation when it comes to the amount of errors made,” Prof Makiko Mizuno, a specialist in linguistic analysis of court interpretations at Kinjo Gakuin University told the Japan Times newspaper.

After the verdict was returned on Hinds on Mar 19, five of the six lay jurors expressed concerns about the interpretation mistakes made during the previous two weeks.

One of them, who claimed to be an English speaker, admitted to slipping notes to the judge to inform him of misinterpretations. “I wondered how much of the language, culture and background was understood, and sometimes felt there was a gap in their understanding and misinterpretation as well,” said lay juror 5, who is in her 20s. “Some of these misinterpretations occurred in important parts of the testimony.”

However, it is debatable as to whether these errors could lead to a retrial. In 2010, a lawyer for a German woman who was given a prison term for a drug-related offence appealed the ruling due to interpreter errors. After examining statements in the trial an expert had found more than 60% of the content was either mistranslated or dropped in translation. Nonetheless, the retrial bid was denied.

Hinds’s attorney, Masanao Hattori, said he and his team had not yet had the opportunity to discuss the issue of a retrial, an application for which must be made by Apr 1. However, he thought it unlikely they would do so on the basis of what he termed “dire” interpreting during the trial.

“It was the worst I have ever experienced,” he said, adding that his team had not informed Hinds of the error-strewn translating. “There was nobody in that court room who would have thought otherwise.”

“But while it certainly was bad, I am not sure it was bad enough to make a real difference one way or another to the final verdict. I expect that the judges were aware that the translating wasn’t quite up to scratch.”

Asked about his own English capabilities, Hattori admitted they were not good enough to comprehend all of the proceedings, and his team had employed a translator to communicate with their client.

The Furlong family now intend to sue the Tokyo hotel where Nicola was killed. As her parents, Andrew and Angela and sister, Andrea, arrived back in Dublin, her father confirmed the family will take a civil action for negligence against the Keio Plaza Hotel where Hinds strangled Nicola.

Hinds was jailed for up to 10 years for Nicola’s murder — his trial heard how hotel staff provided him with a wheelchair to bring her to his room in an unconscious state.

Mr Furlong said: “If they [the hotel] had done what they should have done, Nicola mightn’t be dead.”

Under Japanese law, every hotel is obliged to keep a guest register.

Ms Furlong was unconscious when brought to the hotel by her killer, and therefore the hotel was unable to check her identity and register her.

However the hotel denied it had contravened any law.