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Name: People v. Jiang
Case #: H026546
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 07/16/2005
Subsequent History: rehearing denied 8/12/05

A trial court erred in failing to exclude a defendant’s statements that were preceded by an inadequate translation of the Miranda warnings. The officer questioning the defendant in this case used a Mandarin interpreter to interview the defendant, who read and wrote some English but was not fluent in spoken English. The interpreter provided only truncated or “badly mangled” Mandarin versions of the Miranda warnings, and the only evidence of defendant’s ability to speak or to understand spoken English indicated that his skills in those areas were rudimentary. The court found that the Attorney General had not met the burden of showing that the error was harmless because the respondent’s brief included only a one-paragraph argument to that effect, without citations to the record or to any authority. For guidance if the matter were to be retried, the court further found that the trial court erred in allowing the prosecutor to access documents found on defendant’s work computer that defendant had prepared at the behest of his attorney. The items were clearly covered by the attorney-client privilege, and a privacy waiver between defendant and his employer was intended to protect the employer’s intellectual property rights, not to waive defendant’s attorney-client privilege. Moreover, counsel’s failure to object to the documents at trial could not waive the privilege because there was no evidence that defendant had consented to such a waiver. The court ordered the trial court to determine prior to retrial whether the district attorney’s office should be recused due to the violation of the attorney-client privilege in the first trial. Next, the court found that the trial court properly excluded a defense witness who would have testified that defendant’s belief that a rape victim had consented to sexual activity was reasonable based on Chinese cultural factors, because those factors would not have rendered such belief reasonable under American cultural standards. Finally, the court held that the trial court erred in failing to apprise the defense of the nature of issues that would be addressed at an in camera hearing to determine whether a proposed prosecution witness, an FBI agent to whom the victim had related the details of the offense, would be protected by governmental immunity. On retrial, the defense should be provided with notice sufficient to allow the defense to demonstrate a need for the witness’s testimony prior to an in camera hearing regarding the governmental privilege.