Most of us have used Google Translate or a similar, free language translation web tool or app to look up a word or phrase. But what happens when Google Translate is used as the primary means of communicating with a Limited English Proficient (LEP) individual in a crucial situation? The words “epic fail” come to mind.
The Traffic Stop
Let’s explore the recent decision from the United States District Court for the District of Kansas involving a traffic stop and a Spanish-speaking driver.
In the fall of 2017, a Kansas Highway Patrol Trooper pulled over a vehicle with a suspended registration. The driver and sole occupant of the vehicle spoke Spanish with only very limited English skills. After struggling through some initial exchange of information, the Trooper asked the driver if he would come to the patrol vehicle. Once inside the vehicle, the Trooper pulled up Google Translate on his in-car laptop. He started typing questions in English for Google Translate to translate into written Spanish, and then showing it to the driver to read.
After seeming to end the traffic stop (the Trooper issued a warning and said “Adios”), he called the driver back and asked (in English) if he could ask a couple more questions. The driver responded “What?” and got back into the car.
The Request for Consent to Search
Continuing to use Google Translate, the Trooper asked a series of questions, many of which the driver didn’t understand. The Trooper ultimately typed “Can I search the car” or “Can I search your car” and used two fingers to point to his eyes and then to the car. While the video sadly didn’t capture the exact question or the Spanish translation, later use of Google Translate translated this phrase as ¿Puedo buscar el auto? This actually translates to “Can I find the car?”
The legal standard for a consent to search is exacting. The consent must be:
- Unequivocal;
- Specific;
- Freely given; and
- Intelligently given.
Additionally, there can be no implied or express duress or coercion.
The Finding
The court found that the driver did not freely and intelligently give specific and unequivocal consent to search. The decision relied on two key factors:
- “Search” versus “find,” and numerous other examples of what the expert witness in the case called “literal but nonsensical translations” throughout the Q&A exchange; and
- Numerous times that the driver expressed confusion over the questions.
The end result? The court threw out the evidence seized during the search of the vehicle: approximately 14 pounds of methamphetamine and cocaine.
No Exceptions
The prosecution tried a second angle to keep the key evidence against the driver in the case: the good-faith exception. Essentially, the good-faith exception says, “if you honestly and reasonably thought you had consent, but were mistaken, the search is valid.” The prosecutor argued that the Trooper reasonably relied on Google Translate and thought the consent was good. Because the good-faith exception rarely applies when the misunderstanding is the result of a mistake by the individual conducting the search, and even the Trooper admitted that a live interpreter would have been the better choice, the court found the exception did not apply.
Lessons Learned
While the prosecutor in the case can appeal the decision, the court’s analysis of the matter offers several valuable lessons with respect to effective communication with LEP individuals:
- Never rely on Google Translate or a similar online or app-based machine translation service when it comes to anything of importance. This applies well beyond informed consent to a police search. For example:
- Informed consent to a medical procedure;
- Patient instructions regarding medical care, like preparation for medical procedures, after care, or taking prescription medication.
- Contracts that create an obligation to perform services, provide goods, and/or pay money; or
- Assembly/use instructions for machinery where improper assembly/use might result in injury or property damage.
- Get On–Demand Remote Interpreting Services. If you don’t already have on-demand remote interpreting services, like over-the-phone and/or video remote interpreting – get them! This is especially vital if you’re in an industry where the need for interpreting in a critical situation can pop up unexpectedly, like police, fire, ambulance, child protection, social services, and healthcare.
- Make sure your staff knows about your language services options and how to access them. Once you have remote interpreting services, make sure your staff knows about them and how to use them. Most police departments, for example, have access to 24/7/365 on-demand telephone and/or video remote interpreting services. Imagine the different outcome of this case if the Trooper had simply called a telephone interpreter.
- Use written documents to supplement verbal consent. Where consent is key, supplementing a conversation in (broken) English with a written document in another language can do the trick. A case cited in the court’s decision involved a police officer who used a request to search form written in Spanish to supplement less-than-perfect English communication with a Spanish-speaking LEP individual. In that case, the consent was found valid. Consider getting vital consent forms translated into the most commonly needed languages in your region.
Communicating with LEP individuals gains a new importance when matters of consent, personal freedoms, life and death, and/or potential financial ruin are in play. Make sure you’re ready to communicate. Connect with us today!
