Tapia-Reyes v. Excel Corp.
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Nebraska Advance Sheets
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signed by Garcia also shows the “Signature of Defendant’s
Attorney.” The signature, albeit largely illegible, attests to
an “Attorney’s Statement” that the form was reviewed by the
attorney with Garcia and that all rights were reviewed and
questions answered.
The trial court did not clearly err in concluding that the prior
California convictions were counseled.
Garcia concedes that his argument concerning his sentence
of 180 days’ jail time was addressed in State v. Dinslage.32 In
Dinslage, we concluded that it was within the trial court’s discretion to impose up to 180 days’ confinement as a condition of
probation. We find no error in Garcia’s sentence.
VI. CONCLUSION
For the foregoing reasons, we affirm.
32
Affirmed.
State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010).
Jesus Tapia-R eyes, appellee, v.
Excel Corporation, appellant.
___N.W.2d___
Filed January 21, 2011.
No. S-10-474.
1. Workers’ Compensation: Appeal and Error. In determining whether to affirm,
modify, reverse, or set aside a judgment of the Workers’ Compensation Court
review panel, a higher appellate court reviews the finding of the trial judge who
conducted the original hearing; the findings of fact of the trial judge will not be
disturbed on appeal unless clearly wrong.
2. ____: ____. With respect to questions of law in workers’ compensation cases, an
appellate court is obligated to make its own determination.
3. Workers’ Compensation: Evidence: Appeal and Error. The workers’ compensation review panel may reverse or modify the findings, order, award, or judgment of the original hearing only on the grounds that the judge was clearly wrong
on the evidence or the decision was contrary to law.
4. Workers’ Compensation: Appeal and Error. Appeals from a workers’ compensation trial court to a review panel are controlled by the statutory provisions
found in the Nebraska Workers’ Compensation Act.
5. Workers’ Compensation. The Nebraska Workers’ Compensation Act is construed liberally to carry out its spirit and beneficent purposes.
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6. Principal and Agent: Words and Phrases. Agency is the fiduciary relation
which results from the manifestation of consent by one person to another that
the other shall act on his behalf and subject to his control, and the consent of the
other to so act.
7. Constitutional Law: Witnesses: Interpreters: Public Policy. It is the public
policy of this state that the constitutional rights of persons unable to communicate
the English language cannot be fully protected unless interpreters are available to
assist such persons.
8. Constitutional Law: Witnesses: Interpreters. While a word-for-word translation best ensures that the quality of the translation does not fall below the
constitutionally permissible threshold, there is no constitutional right to a flawless interpretation.
9. Rules of the Supreme Court: Interpreters: Appeal and Error. The failure
to strictly adhere to the Nebraska Code of Professional Responsibility for
Interpreters does not of itself create reversible error in an appeal from judicial proceedings.
10. Judges: Evidence: Presumptions. It is presumed that judges disregard evidence
which should not have been admitted.
11. Trial: Witnesses: Interpreters. Matters concerning interpreters’ conduct during
judicial proceedings are left to the sound discretion of the court.
Appeal from the Workers’ Compensation Court. Reversed
and remanded for further proceedings.
James D. Hamilton and Amanda A. Dutton, of Baylor,
Evnen, Curtiss, Grimit & Witt, L.L.P., for appellant.
Jesus Tapia-Reyes, pro se.
Heavican, C.J., Connolly, Gerrard, Stephan, McCormack,
and Miller-Lerman, JJ.
McCormack, J.
NATURE OF CASE
Jesus Tapia-Reyes suffered a permanent injury to his back
while working as a loader for Excel Corporation (Excel). After
8 years of working in a different position offered by Excel
to accommodate his physical restrictions, Tapia-Reyes was
fired for an alleged act of sexual harassment of a coworker.
After that, he filed his workers’ compensation claim, which
had been tolled by Excel’s voluntary medical and partial disability payments. At the hearing before a single judge of the
Nebraska Workers’ Compensation Court, Tapia-Reyes and the
alleged victim of the harassment testified with the assistance
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of an interpreter. The single judge awarded a 30-percent
permanent impairment, but denied vocational rehabilitation
based on its finding that Tapia-Reyes was fired for cause.
Tapia-Reyes appealed to the review panel. He alleged several errors, including that the interpreter had inappropriately
commented on the testimony. The review panel agreed, and
reversed and remanded for a hearing before a new judge. The
panel did not address Tapia-Reyes’ other assignments of error.
Excel appeals and asks that we affirm the award of the single
judge. Excel asserts that any interpreter error was harmless,
because the reason for Tapia-Reyes’ discharge is irrelevant to
the question of entitlement to vocational rehabilitation. Excel
also argues that this alleged error and others were not properly before the review panel, because it lacked authority to
consolidate separate but timely filed applications for review
by Tapia-Reyes’ attorney and by Tapia-Reyes, pro se. We
hold that the review panel erred in reversing on the issue of
the interpreter, and we reverse the order of reversal on review
and remand the cause to the review panel for consideration of
the remaining errors presented in Tapia-Reyes’ consolidated
application for review.
BACKGROUND
In September 1999, Tapia-Reyes was hired by Excel to
work on the “kill floor” as a loader. Prior to this, Tapia-Reyes
worked several other jobs involving medium to heavy physical
activity which did not require that he be proficient in English.
He is 42 years old, and his education is limited to five grades
of primary school. He suffers from epilepsy and, because of a
seizure-related traffic incident, is currently unable to obtain a
driver’s license.
On April 13, 2000, Tapia-Reyes injured his lower back
while working at Excel, lifting and twisting with boxes of
meat product. A functional capacity examination conducted
in 2002 recommended that Tapia-Reyes work under permanent work restrictions within a light to medium demand level.
The compensation court appointed a vocational rehabilitation
consultant who performed a loss of earning power evaluation
and determined Tapia-Reyes had a 20-percent permanent loss.
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Tapia-Reyes obtained a rebuttal evaluation assigning a 40- to
45-percent loss. Excel voluntarily paid Tapia-Reyes’ continuing medical expenses and placed him in the liver packaging
and labeling department, a job within his physical restrictions. Excel also voluntarily paid Tapia-Reyes compensation
based upon the 20-percent loss of earning power found by
the court-appointed consultant. Tapia-Reyes did not pursue a
workers’ compensation award at that time. In August 2008,
Tapia-Reyes was fired for the alleged sexual harassment of a
female coworker.
Workers’ Compensation Court
On August 25, 2008, Tapia-Reyes, through his attorney, filed
a petition before a single judge of the compensation court. The
petition sought continuing reimbursement of medical bills,
a determination of permanent partial disability benefits, and
vocational rehabilitation.
On November 21, 2008, the single judge granted TapiaReyes’ application for appointment of a new vocational rehabilitation consultant to redetermine Tapia-Reyes’ loss of earning capacity and create a vocational rehabilitation plan. The
newly appointed consultant evaluated Tapia-Reyes’ loss of
earning capacity at 30 percent, noting that the previous loss of
earning capacity report had improperly utilized Tapia-Reyes’
hourly wage rather than his average weekly wage. A new
rebuttal evaluation assigned a 40- to 45-percent loss of earning capacity.
The court-appointed consultant’s report also indicated that
Tapia-Reyes had been actively seeking employment since
August 2008 and had been unable to obtain any interviews.
It was the consultant’s conclusion that Tapia-Reyes lacked the
English reading and writing skills needed to independently
complete a job application and which would also be needed to
work many jobs otherwise suitable to his physical restrictions
and lack of ability to drive. The consultant set forth a 6-month
plan designed to improve Tapia-Reyes’ English skills. Excel
objected to the plan on the grounds that Excel had continued
to accommodate Tapia-Reyes and that Tapia-Reyes had lost his
employment for reasons unrelated to his injury.
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The hearing before the single judge was held on May 4,
2009. The principal issue at the hearing was whether TapiaReyes’ employment was terminated for cause. Tapia-Reyes
testified with the aid of an interpreter, who clarified that he was
registered, but not certified. Tapia-Reyes did not object to the
interpreter’s qualifications.
Tapia-Reyes testified that he was fired based on Excel’s
belief that he had inappropriately touched a female coworker.
But he denied that he had done anything wrong and explained
that he had unintentionally touched his coworker during an
epileptic seizure. Medical records showed a history of epileptic seizures, some of which involved inappropriate behavior.
Tapia-Reyes described that in August 2008, while at work,
he felt an epileptic seizure coming on. He reached over to
touch his coworker who was standing next to him to tell her
he was not feeling well. Just then, he had a seizure and his
hand unintentionally “slid down her back.” The incident was
captured by a video surveillance camera. Tapia-Reyes testified
that his supervisor showed him the video when he was fired
but that Tapia-Reyes believed the video portrayed events in a
manner consistent with a seizure. By the time of the hearing
before the compensation court, the video was no longer available. Excel had destroyed it after 30 days, as was its customary practice.
On cross-examination, Tapia-Reyes was asked about a prior
complaint made against him in 2004 for using inappropriate
language to his coworkers. He admitted that, because of prior
complaints, he was put on “final warning status.” Tapia-Reyes
testified that he was guilty of yelling at his coworkers when
they did not keep up with their work on the line and that he
recognized he did not have the authority to do so. He denied
using any vulgar language other than once saying, “hurry
up, huevona.”
At this point, the interpreter interjected and the following
exchange took place:
THE INTERPRETER: Huevona is usually applied to
men. It means you’ve got more in your pants than you’ve
got in your head is what the technical expression means,
but he said —
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[Attorney for Tapia-Reyes]: Excuse me, is the witness
testifying to that?
THE INTERPRETER: He is saying — he did say
that. On one occasion I said to some, apurase, hurry up,
huevona. I’m explaining huevona literally — huevona is
somebody that’s got more in his pants than he’s got in his
head. That’s the technical translation for huevona. Not a
good word.
[Attorney for Tapia-Reyes]: I would ask that the translator’s interpretation be stricken.
THE COURT: All right. I will disregard the editorial
comment, but he defined the word.
The coworker who Tapia-Reyes allegedly sexually harassed
also testified at the hearing with the assistance of the interpreter. She described the August 2008 incident in detail. She
stated that she was in her work area waiting for the livers to
come for packing and that she felt Tapia-Reyes’ hands from
behind, going underneath her apron, and “up and down my
back and my legs.” She stated that she told her supervisor,
but did not make a formal report of the incident right away.
A few days later, Tapia-Reyes told her, “very offensively,”
to hurry up. At that point, she made a written complaint and
Tapia-Reyes was fired. The coworker explained that TapiaReyes had not used foul language when he yelled at her a few
days after the incident but that he did say, “I’m going to be
waiting for you until you get ready.” When the coworker was
cross-examined about raising for the first time at the hearing
the allegation that Tapia-Reyes had threatened her, the interpreter interjected:
THE INTERPRETER: Well, my interpretation of her,
I’m going to be waiting for you. I didn’t say it the way
she said it exactly because I said literally what she said.
I’m going to be waiting for you. The implication is not
I’m going to wait for you for something bad. The implication is I’m going to wait for you sexually.
[Attorney for Tapia-Reyes]: Your Honor, I object to the
interpretation. We’re getting nuances of what should be a
fairly word-for-word interpretation, and this interpreter in
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this case has several times editorialized to be generous. I
have no further questions of the witness.
THE COURT: I think it depends on context, just the
way English words can be interpreted differently, used in
context, and I have never before had any concern about
[the interpreter’s] services.
[Attorney for Tapia-Reyes]: Okay. I’ll accept the Court’s
clarification. And I have no further questions. Thank you
very much, Your Honor.
The coworker also explained that she did not believe TapiaReyes had a seizure when he touched her, because, in the days
following, he told her, “fucking old lady, why didn’t you say
do that to me again instead of what you said?”
The award was entered on July 16, 2009. The single judge
concluded that Tapia-Reyes experienced a 30-percent permanent loss of earning power which entitled him to $82.37 per
week for permanent partial indemnity from and after April 13,
2000, for 300 weeks. Excel was entitled to credit for indemnity
paid. The court also ordered that Excel continue to pay for
medical expenses in relation to the injury. The single judge
denied Tapia-Reyes’ request for vocational rehabilitation serv
ices. The court explained, “But for his employment misconduct, he could have continued his accommodated employment
with [Excel] and is therefore not entitled to vocational rehabilitation services.”
R eview Panel
On July 28, 2009, Tapia-Reyes filed the following unedited,
handwritten document with the compensation court:
Id like To appeal the decition for award From Judge
Brown July-16-09 Because my Atorney . . . Don’t help
my How I need Because Don’t give me a Chance To brin
my witnes and Don’t give me a chance To explein to the
Judge was wrong with the Company and Co Worker.
On July 30, Tapia-Reyes’ attorney filed an application for
review, alleging that the single judge erred in failing to award
vocational rehabilitation services and in finding that TapiaReyes suffered only a 30-percent loss of earning power. TapiaReyes’ attorney asked that the review panel reverse or modify
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the award, because Tapia-Reyes was entitled to vocational
rehabilitation services and to indemnity benefits for a 40- to
45-percent loss of earning power.
Excel moved to dismiss the July 30, 2009, application for
review on the ground that because Tapia-Reyes apparently no
longer wished for his attorney to represent him, it was unfair
to force Excel to respond to two appeals instead of one. TapiaReyes’ attorney responded with a motion to consolidate the two
applications for review. On September 4, Tapia-Reyes’ attorney
filed an application to withdraw, noting that Tapia-Reyes had
filed a complaint against him before the Counsel for Discipline
of the Nebraska Supreme Court and that Tapia-Reyes had other
wise indicated by his pro se filing that he no longer wished for
counsel to represent him.
While counsel’s motion to withdraw was pending, the review
panel overruled Excel’s motion to dismiss. The review panel
noted that at the time the applications were filed, Tapia-Reyes’
attorney had not been discharged. The review panel noted further that Tapia-Reyes had indicated he wished the application
for review filed by his attorney of record to apply and help
define the basis for his appeal. The review panel found no real
prejudice to Excel and granted Tapia-Reyes’ motion to consolidate the applications.
Tapia-Reyes’ attorney had also moved to amend the application for review to include allegations relating to the interpreter’s qualifications and conduct at the May 4, 2009, hearing.
Counsel explained that one of the aspects of this challenge,
that the interpreter had failed to file an affidavit as required by
Workers’ Comp. Ct. R. of Proc. 5 (2009), was only recently
discovered. The review panel granted the motion to amend,
over Excel’s objection. After these matters were settled, the
review panel granted counsel’s motion to withdraw.
The review panel summarized the consolidated and amended
application for review as alleging the following assignments
of error: (1) The single judge erred in concluding that TapiaReyes was not entitled to vocational rehabilitation services;
(2) the single judge erred in concluding that Tapia-Reyes had
suffered only a 30-percent loss of earning power; (3) the interpreter used at the trial herein was not certified by the State of
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Nebraska, and he gave explanations and elaborations in his
interpretation of certain trial testimony that may have affected
the outcome of the proceedings; and (4) the acts and omissions
of Tapia-Reyes’ attorney prejudiced the presentation of TapiaReyes’ case, to his detriment.
The review panel reversed on the third assignment of error
and concluded that it was unnecessary to reach any of the
remaining assignments of error. While the review panel rejected
Tapia-Reyes’ argument that the interpreter’s lack of certification
or affidavit was in itself reversible error, it did conclude that
the interpreter’s commentary was inappropriate and prejudicial.
The panel found that the interpreter added to and explained that
which was stated by a witness, in violation of Canon 1 of the
Nebraska Code of Professional Responsibility for Interpreters.
The panel remanded the case for a new hearing before a different judge, explaining that it knew of no other satisfactory
remedial measure that would satisfy the policy of this state
concerning non-English-speaking litigants as established by the
Nebraska Legislature. Excel appeals the review panel’s decision. Tapia-Reyes does not cross-appeal.
ASSIGNMENTS OF ERROR
Excel asserts that the review panel erred in (1) overruling
its motion to dismiss the July 30, 2009, application for review
filed by Tapia-Reyes’ former counsel; (2) consolidating the July
28 application for review filed by Tapia-Reyes and the July 30
application for review filed by his former counsel; (3) granting
the motion to amend the application for review; (4) finding the
interpreter added to and explained that which was stated by the
witnesses; (5) finding it was unable to state that the actions of
the interpreter were harmless; (6) remanding the matter for a
new trial rather than a less extreme remedy; (7) ordering that
on remand, the case should be assigned to a different judge so
as to avoid any appearance of possible bias or prejudice by the
trier of fact; and (8) failing to affirm the decision of the single
judge in all respects.
See Neb. Ct. R. § 6-701 et seq., appendix 1.
See Neb. Rev. Stat. § 25-2401 et seq. (Reissue 2008).
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STANDARD OF REVIEW
[1] In determining whether to affirm, modify, reverse, or set
aside a judgment of the Workers’ Compensation Court review
panel, a higher appellate court reviews the finding of the trial
judge who conducted the original hearing; the findings of
fact of the trial judge will not be disturbed on appeal unless
clearly wrong.
[2] With respect to questions of law in workers’ compensation cases, an appellate court is obligated to make its
own determination.
[3] The workers’ compensation review panel may reverse or
modify the findings, order, award, or judgment of the original
hearing only on the grounds that the judge was clearly wrong
on the evidence or the decision was contrary to law.
ANALYSIS
Applications for R eview
[4] We first address Excel’s assignments of error relating to
the facts that the review panel allowed Tapia-Reyes’ attorney
to file an application for review and a motion to amend and
granted the attorney’s motion to consolidate all assigned errors.
Appeals from a workers’ compensation trial court to a review
panel are controlled by the statutory provisions found in the
Nebraska Workers’ Compensation Act. Under Neb. Rev. Stat.
§ 48-170 (Reissue 2004), every order and award of a single
judge of the compensation court shall be binding unless an
application for review has been filed within 14 days after the
date of entry of the order or award. Neb. Rev. Stat. § 48-179
(Reissue 2004) provides that the application must be specific
as to each finding of fact and conclusion of law urged as error
and the reason therefor. The party or parties appealing for
Worline v. ABB/Alstom Power Int. CE Servs., 272 Neb. 797, 725 N.W.2d
148 (2006). See, also, Guico v. Excel Corp., 260 Neb. 712, 619 N.W.2d
470 (2000).
Ortiz v. Cement Products, 270 Neb. 787, 708 N.W.2d 610 (2005).
Scott v. Pepsi Cola Co., 249 Neb. 60, 541 N.W.2d 49 (1995).
Miller v. Regional West Med. Ctr., 278 Neb. 676, 772 N.W.2d 872 (2009).
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review shall be bound by the allegations of error contained in
the application.
Excel argues that because §§ 48-170 and 48-179 refer in the
singular to “the” or “an” application for review, the Nebraska
Workers’ Compensation Act does not authorize the filing of
multiple applications. In this case, ultimately, there was only
one consolidated application for review. Excel asserts, however, that because there was no authority for the multiple
filings in the first place, Tapia-Reyes’ attorney’s application,
which was second in time, should have been treated as a nullity. Excel argues that the review panel thus lacked authority to
consolidate the alleged errors.
Under the facts of this case, we do not view the act as prohibiting the review panel’s decision to consolidate the assigned
errors. Both Tapia-Reyes’ pro se application for review and
that of his attorney were filed within the 14-day statutory
period. As the review panel noted, there was no harm to Excel,
because it was timely made aware of the alleged errors. Neb.
Rev. Stat. § 48-162.03(1) (Reissue 2004) provides that the
compensation court or any judge thereof may rule upon any
motion by any party to a suit or proceeding, “including, but not
limited to, motions for summary judgment or other motions
for judgment on the pleadings but not including motions for
new trial or motions for reconsideration.” Tapia-Reyes’ motion,
being neither a motion for new trial nor a motion for reconsideration, appears to be permissible under the broad language of
§ 48-162.03(1).
[5] Furthermore, the act is construed liberally to carry out
its spirit and beneficent purposes. In order to justly carry out
the spirit of the act, other provisions of the act generally state
that “[t]he Nebraska Workers’ Compensation Court shall not be
bound by the usual common-law or statutory rules of evidence
or by any technical or formal rules of procedure, other than as
§ 48-179.
Powell v. Estate Gardeners, 275 Neb. 287, 745 N.W.2d 917 (2008).
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herein provided . . . .” We conclude it would be contrary to
the spirit and beneficent purposes of the act to forever bar an
applicant from supplementing alleged errors mistakenly omitted from “the” application for review. This is especially true
when the application is corrected within the 14-day statutory
period for the filing.
Excel also argues that because Tapia-Reyes apparently
wished to proceed pro se, his attorney lacked the authority,
under agency principles, to file the application, motion to consolidate, and motion to amend. Excel argues that at the very
least, the review panel should have conducted an inquiry into
whether the attorney was really acting as Tapia-Reyes’ agent.
[6] Agency is the fiduciary relation which results from
the manifestation of consent by one person to another that
the other shall act on his behalf and subject to his control,
and the consent of the other to so act.10 When Tapia-Reyes
hired his attorney, they established such an agency relationship.11 While Tapia-Reyes later expressed dissatisfaction with
his attorney’s representation, the attorney was not immediately discharged. The attorney’s motion to withdraw was
still pending when the attorney made the filings here in
issue. Furthermore, Tapia-Reyes had confirmed his attorney’s
agency by indicating to the review panel that he wished the
attorney’s application for review to apply and help define the
basis for his appeal. We find no merit to Excel’s argument
that the attorney’s filings must be treated as nullities or that
the review panel erred in considering them because of a lack
of agency. We affirm the review panel’s decision allowing
Tapia-Reyes to amend and consolidate the alleged errors in
the applications for review.
10
11
Neb. Rev. Stat. § 48-168(1) (Cum. Supp. 2010). See, also, Olivotto v.
DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007); Veatch v.
American Tool, 267 Neb. 711, 676 N.W.2d 730 (2004).
Deutsche Bank Nat. Trust Co. v. Siegel, 279 Neb. 174, 777 N.W.2d 259
(2010).
See, Young v. Midwest Fam. Mut. Ins. Co., 276 Neb. 206, 753 N.W.2d 778
(2008); Luethke v. Suhr, 264 Neb. 505, 650 N.W.2d 220 (2002).
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Interpreter
[7] We next address Excel’s argument that the review panel
erred in reversing the decision of the single judge because of
the interpreter’s improper explanations of testimony. Section
25-2401 provides generally that it is the public policy of
this state that the constitutional rights of persons unable to
communicate the English language cannot be fully protected
unless interpreters are available to assist such persons. This
policy applies in “any legal proceeding.”12 The requirement
that an interpreter provide an accurate translation implicates
a defendant’s due process right to a fair trial as guaranteed by
the Fifth Amendment,13 the ultimate question being whether
the translator’s performance has rendered the trial fundamentally unfair.14
[8] It has been said that while a word-for-word translation
best ensures that the quality of the translation does not fall below
the constitutionally permissible threshold, there is no constitutional right to a “flawless” interpretation.15 “[C]ourtroom interpretation is a demanding and inexact art, and . . . the languages
involved may not have precise equivalents for particular words
or concepts.”16 Minor or isolated inaccuracies, omissions, interruptions, or other defects in translation are inevitable and do
not warrant relief where the translation is on the whole reasonably timely, complete, and accurate, and the defects do not
render the proceeding fundamentally unfair.17
12
13
14
15
16
17
§ 25-2402(3).
See, generally, Annot., 32 A.L.R.5th 149 (1995). See, also, e.g., ZacariasVelasquez v. Mukasey, 509 F.3d 429 (8th Cir. 2007); U.S. v. Si, 333 F.3d
1041 (9th Cir. 2003); Amadou v. I.N.S., 226 F.3d 724 (6th Cir. 2000); U.S.
v. Gomez, 908 F.2d 809 (11th Cir. 1990).
See 32 A.L.R.5th, supra note 13. See, also, U.S. v. Edouard, 485 F.3d 1324
(11th Cir. 2007); U.S. v. Huang, 960 F.2d 1128 (2d Cir. 1992).
U.S. v. Gomez, supra note 13, 908 F.2d at 811. See, also, Thongvanh v.
State, 494 N.W.2d 679 (Iowa 1993).
32 A.L.R.5th, supra note 13, § 72 at 470 (and cases cited therein). See,
also, Prokop v. State, 148 Neb. 582, 28 N.W.2d 200 (1947), abrogated
on other grounds, Reavis v. Slominski, 250 Neb. 711, 551 N.W.2d 528
(1996).
32 A.L.R.5th, supra note 13.
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In §§ 25-2401 to 25-2407, the Legislature sets forth the procedure for the appointment of interpreters, which is “to avoid
injustice and to assist such persons in their own defense.”18 The
Code of Professional Responsibility for Interpreters is incorporated into § 25-2407, insofar as it states that any person who
serves as an interpreter for persons unable to communicate
the English language in court proceedings or probation serv
ices shall meet the standards adopted by the Supreme Court.
Section 25-2407 explains that the Supreme Court standards
“shall require that interpreters demonstrate the ability to interpret effectively, accurately, and impartially, both receptively
and expressively, using any necessary special vocabulary.”
The Nebraska Code of Professional Responsibility for
Interpreters was enacted with the recognition that “[i]t is essential that the resulting communication barrier be removed, as far
as possible, so that [persons with limited English proficiency or
a speech or hearing impairment] are placed in the same position as similarly situated persons for whom there is no such
barrier.”19 Canon 1 of the code states: “Interpreters shall render
a complete and accurate interpretation or sight translation,
without altering, omitting, or adding anything to what is stated
or written, and without explanation.”20
Canon 1 follows verbatim the same canon of the Model Code
of Professional Responsibility for Interpreters in the Judiciary.21
While the Nebraska Code of Professional Responsibility for
Interpreters has no commentary, the commentary to Canon 1 of
the model code explains that “[v]erbatim, ‘word for word,’ or
literal oral interpretations are not appropriate when they distort
the meaning of the source language . . . .”22 On the other hand,
“every spoken statement, even if it appears non-responsive,
obscene, rambling, or incoherent should be interpreted. This
18
§ 25-2401.
§ 6-701 et seq., supra note 1, preamble.
20
§ 6-701 et seq., supra note 1 (emphasis supplied).
21
William E. Hewitt, Nat. Ctr. for State Courts, Court Interpretation: Model
Guides for Policy and Practice in the State Courts 197 (1995).
22
Hewitt, supra note 21 at 200. See, also, 65 Am. Jur. Trials 1 § 49 (1997).
19
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includes apparent misstatements.”23 The commentary further explains:
Interpreters should never interject their own words,
phrases, or expressions. If the need arises to explain an
interpreting problem (e.g., a term or phrase with no direct
equivalent in the target language or a misunderstanding
that only the interpreter can clarify), the interpreter should
ask the court’s permission to provide an explanation. . . .
....
The obligation to preserve accuracy includes the interpreter’s duty to correct any error of interpretation discovered by the interpreter during the proceeding.24
In the first instance of alleged interpreter error and misconduct at Tapia-Reyes’ hearing before the single judge, the interpreter was clearly attempting to provide an explanation of the
word “huevona,” which did not appear to have a direct equivalent in the English language. To the extent that the interpreter’s
explanation involved any unnecessary editorializing, the single
judge specifically stated that he would disregard the editorial
comment. The single judge correctly found that the interpreter
was simply trying to define the word “huevona” to the best of
the interpreter’s ability.
It is less clear that the other alleged error of interpretation,
that of the phrase “I’m going to be waiting for you until you
get ready,” similarly necessitated explanation by virtue of there
being no direct English equivalent. The interpreter appeared to
be trying to clarify a misunderstanding. But this is not the same
as a duty to correct an error of interpretation. And it was not a
“misunderstanding that only the interpreter can clarify.”25 The
misunderstanding could have been clarified through continued
examination of the witness by counsel with continued literal
interpretation by the interpreter.
But, when Tapia-Reyes’ attorney objected to the interpreter’s
explanation of what the phrase “I’m going to be waiting for
23
Hewitt, supra note 21 at 200 (emphasis omitted).
Id. at 200-01.
25
See id. at 201.
24
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281 nebraska reports
you until you get ready” implied, the single judge understood
that the interpreter was only placing the phrase in context.
While this may have been an unnecessary “explanation,” prohibited by Canon 1 of the Nebraska Code of Professional
Responsibility for Interpreters, there was no allegation that the
explanation was false.
[9-11] The failure to strictly adhere to the Nebraska Code
of Professional Responsibility for Interpreters does not of
itself create reversible error in an appeal from judicial proceedings. We conclude that any missteps by the interpreter
were minor and did not deny Tapia-Reyes his constitutional or
statutory rights. It is presumed that judges disregard evidence
which should not have been admitted.26 And matters concerning interpreters’ conduct during judicial proceedings are left to
the sound discretion of the court.27 While we can imagine circumstances in which a judge is unaware at trial of the errors in
interpretation and cannot respond to the error, such was not the
case here. The single judge was well advised by Tapia-Reyes’
attorney of the interpretation errors in issue, and it appears
from the record that the single judge properly disregarded inappropriate additions made to the testimony. We therefore agree
with Excel that it was error for the review panel to reverse for
a new trial because of the quality of the interpretation.
CONCLUSION
Although we find merit to Excel’s fourth and fifth assignments of error, we cannot, as Excel urges, simply affirm the
decision of the single judge. Not only was the single judge’s
decision based almost entirely on a theory of law which Excel
now claims was in error, but the review panel has not had the
opportunity to review most of the assignments of error TapiaReyes presented to it. Those assignments, accordingly, have not
been fully briefed to this court. We reverse the order of reversal
26
State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (2010). See, also,
Gibson v. City of Lincoln, 221 Neb. 304, 376 N.W.2d 785 (1985) (applying
this standard to find harmless error in workers’ compensation case).
27
See, State v. Topete, 221 Neb. 771, 380 N.W.2d 635 (1986); Prokop v.
State, supra note 16.
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tapia-reyes v. excel corp.
Cite as 281 Neb. 15
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on review and remand the cause to the review panel for further
proceedings in accordance with this opinion.
R eversed and remanded for
further proceedings.
Wright, J., not participating.
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