Texas Bar Journal • September 2024

Hernandez v. New York

Challenges Involving Bilingual Jurors.

Written by Carlos R. Soltero

a jury sitting in a jury box listening to testimony

Can otherwise qualified jurors be excluded from jury service because they understand a language other than English if that other language appears in the evidence presented at trial? The answer is not simple and implicates significant constitutional issues. The analysis is the same regardless of whether the other language is Spanish, Polish, Chinese, Russian, Vietnamese, French, Arabic, Nahuatl,1 or any of the many other languages jurors who serve in this state and country understand.

In other areas of jury service, members of the venire (and ultimately if selected, petit juries) are instructed to compartmentalize their additional knowledge like having an engineering degree, being a medical doctor or a lawyer, or having a doctorate in mathematics so that they do not unduly influence other jurors in a given case.2 Is it similar in the case of multilingual jurors?

Framing some of the constitutional issues begins with Hernandez v. New York (1991), where the U.S. Supreme Court considered whether a prosecutor’s intentional exclusion of bilingual Latino jurors because of their Spanish-speaking ability violated the equal protection clause, which since Batson v. Kentucky (1986), plainly forbids striking jurors based on race.3 In Hernandez v. New York, seven justices supported the position that if Latinos were excluded on the basis of their ethnicity/race (or if language was merely a proxy for discrimination on that basis), that would violate the equal protection clause.4 At the same time, six justices supported the holding that the prosecution’s use of peremptory strikes against the Latino bilingual jurors in that case did not violate the equal protection clause.

Apart from affirming that the Batson rule applies to protect the exclusion of Latinos/Hispanics and any other racial or national origin/ethnic groups from jury selection, Hernandez v. New York accepted as a race-neutral permissible reason for exclusion (overcoming the third step of the Batson test) based on the prosecutor’s expressed belief of unaddressed concerns that the bilingual jurors might not be able to put aside their knowledge of Spanish in considering the evidence presented at trial. The court’s plurality and two concurring justices rejected the correlation between knowing Spanish and being Hispanic/Latino as not establishing a sufficient causal link. Justice Anthony Kennedy’s opinion accepted the prosecutor’s reasons, which Kennedy found were not based on stereotypical assumptions about Latinos or bilinguals, but rather on the prosecutor’s stated basis for these challenges dividing potential jurors into two classes: those whose conduct during voir dire persuade him they might have difficulty in accepting the translator’s rendition of Spanish-language testimony, and those who did not. According to Kennedy, each category would include both Latinos and non-Latinos.

One fascinating aspect raised in the Hernandez v. New York opinion is in footnote 3 referencing a U.S. Court of Appeals for the 9th Circuit case where a bilingual juror took issue with the accuracy of the formal interpreter’s interpretation of the testimony. The juror interrupted the trial and asked the trial judge if she could ask a question about the interpretation of the Spanish word “La vado” as a bar rather than a restroom. The trial judge in that case clarified that the jurors cannot ask questions directly and when the interpreter stated that “the jurors are not to listen to the Spanish but to the English. I am a certified court interpreter,” the juror responded by apparently calling the interpreter “an idiot.” Although the juror indicated that she said it was “an idiom,” the juror was dismissed.5 The prosecution cited this case as an illustration of distractions that could occur with bilingual jurors in the jury box.

The three dissenting justices in Hernandez v. New York rejected the prosecutor’s explanations for several reasons. First, the dissenters noted that this justification inevitably results in a disproportionate disqualification of Spanish-speaking prospective jurors. Second, the prosecutor’s concern could easily have been accommodated by less drastic means such as instructing the jury to consider only the official translation and/ or bring to the attention of the judge any disagreements they might have with the translation (more on this below). Third, if the prosecutor’s concern was valid and substantiated by the record, it would have supported a challenge for cause. Finally, the dissenters proposed an “even more effective solution” of using a translator, who is the only person hearing the witness’ words and who simultaneously interprets them into English, permitting every juror on the jury to hear only the official English interpretation.

Since Hernandez v. New York, many jurisdictions have followed precisely one of the recommendations of the dissenters and adopted instructions to jurors to consider only the official interpretation.6 Texas has now joined those jurisdictions as its criminal law Pattern Jury Charges volume has some model instructions for trial judges to consider in proper cases where a language other than English may be introduced as part of the evidence at trial.7 As currently existing in the 2022 volume of the criminal PJC, the three instructions suggest using: (1) contemporaneously with witness testimony heard at trial, (2) contemporaneously with audio recordings presented at trial, and (3) at the end of the trial proceeding before jury deliberation. These instructions directly and effectively address the concerns about the potential improper sharing of a juror’s personal experience or belief about a language issue in the case. Since the law already presumes that when the trial judge instructs jurors to “disregard” evidence, that the jury will do so, there is no inherent reason to believe that bilingual jurors are less competent or able than other jurors to follow this legal presumption.8

While oral testimony is interpreted (usually by someone certified), written testimony is translated, and translation of written materials in Texas is governed by the procedures in Texas Rules of Evidence Rule 1009. Errors in translation and interpretation are common, notwithstanding the sincere best efforts of translators and interpreters. For example, one scholar, Professor Juan Perea, notes that in the official transcript of the oral argument of Hernandez v. New York itself there are several apparent errors by the certified court reporter.9

Another interesting topic involves when a juror detects error in the interpretation as was the case in Perez. An underlying assumption is that “the problem” is that a bilingual juror might refuse to accept the official translation and questioning the accuracy of potentially inaccurate translations to testimony in the non-English language. In that regard, Perea asks: “But why should anyone in the courtroom, jurors, judge, attorneys, or parties, accept an incorrect or potentially incorrect rendering of a witnesses’ testimony?”10 In other words, should not the quality of the evidence presented at trial be as accurate as possible?

Almost 70 years before Hernandez v. New York, the Supreme Court overturned the conviction of school teachers who were criminally prosecuted for teaching German to students in the political climate around World War I when the U.S. was at war against Germany.11 In one of those cases, Meyer v. Nebraska (1923), the court ruled that teaching a non-English language was a fundamental constitutional right protected by the 14th Amendment’s due process clause. The new jury instructions will help preserve the integrity of the judicial process and allow multilingual citizens to participate fully in one of the key participatory civil service acts of democracy, serving on a jury.

In part, Hernandez v. New York extends Batson’s rule (prohibiting the use of race in jury selection) to the exclusion of Latino jurors just like Hernandez v. Texas (1954) extends the Strauderrule (prohibiting exclusion based on race in grand jury selection) to the systematic exclusion of Mexican Americans. Just 20 years prior to the Hernandez v. New York opinion, the federally appointed U.S. Commission on Civil Rights (USCCR) found that Mexican Americans were still underrepresented in petit and grand juries notwithstanding the Supreme Court’s ruling in Hernandez v. Texas and other anti-discriminatory efforts.12 As Hernandez v. New York highlights, it would be an anomalous, unfortunate, and ironic result if a person who is (or becomes) a citizen develops sufficient English proficiency to participate in jury service but is excluded for knowing “too much,” namely another language.

NOTES

1. An interesting recent language rights case noted that due process required reversal of a conviction of a man whose language was Nahuatl and he was deprived the opportunity to participate in his defense because he did not understand either English or Spanish provided through an interpreter. Tolentino v. State, 01-22-0042-CR, 2024 WL 1723975, *6 (Tex. App.—Houston [1st Dist.] April 23, 2024).

2. Tex. Pattern Jury Charge § 200.2, paragraph 7 (“Do not tell other jurors about your own experiences or other people’s experiences. For example, you may have special knowledge of something in the case, such as business, technical, or professional information. You may even have expert knowledge or opinions, or you may know what happened in this case or another similar case. Do not tell the other jurors about it. Telling other jurors about it is wrong because it means the jury will be considering things that were not admitted in court.”).

3. Batson v. Kentucky, 476 U.S. 79, 118-19; 106 S.Ct. 1712, 1735 (1986).

4. The seven justices were the four members of the court’s plurality opinion plus the three dissenters. The two who did not concede this point were Justices O’Connor and Scalia, who concurred with the plurality; see also Hernandez, 500 U.S. at 355, 111 S.Ct. at 1864; Hernandez, 500 U.S. at 376-79, 111 S.Ct. at 1875-77.

5. Hernandez, 500 U.S. at 360, 111 S.Ct. at 1867 n.3, citing, U.S. v. Perez, 658 F.2d 654 (9th Cir. 1981).

6. See e.g., Ninth Circuit Manual of Model Civil Jury Instructions §§ 2.9, 3.4 (2001) (www.ce9.uscourts.gov/jury-instructions/node/69); see also Florida Standard Jury Instructions in Civil Cases §301.6 (Oct. 2023); see also Illinois 2.05; see also Mich. Crim. J. Instruction § 5.15.

7. Tx. Pattern Jury Charge (Criminal) § 1.15 – 1.18 (2022); see also Sanchez-Rodriguez v. State, 2014 WL 1178337, at *5 (Tex. App.—Dallas Mar. 21, 2014, no pet.).

8. See e.g., Terry v. State, 481 S.W.2d 870, 871 (Tex. Crim. 1972) (no error where trial court promptly sustained the appellant’s objection and instructed the jury to disregard remarks).

9. Juan Perea, Hernandez v. New York: Courts, Prosecutors & the Fear of Spanish, 21 Hofstra L. Rev. 1, 27 (1992).

10. Perea, Hernandez v. New York, 21 Hofstra at 39 (emphasis added).

11. Meyer v. Nebraska, 262 U.S. 390, 397-403, 43 S.Ct. 625, 626-27 (1923); see also Bartels v. Iowa, 262 U.S. 404, 409-11, 43 S.Ct. 628, 629-30 (1923).

12. U.S. Commission on Civil Rights, Mexican Americans and the Administration of Justice in the Southwest, at iii, 36-46 (1970).

Headshot of CARLOS R. SOLTEROCARLOS R. SOLTERO has been a trial lawyer for 30 years, is a shareholder at Maynard Nexsen, and is certified in personal injury trial law by the Texas Board of Legal Specialization. He has served on various State Bar committees and other professional groups, including being chair of the Texas Pattern Jury Charge Business, Consumer, Insurance & Employment Committee from 2022 to 2024.

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