Testifying in French

written by I. Nelson Rose

I don’t usually write about my cases.  But the trial court has reached its verdict.  And I want to describe my experience testifying as an expert witness in a criminal trial in Paris, France.  In French.

Well, the trial was conducted entirely in French.  I spoke English.  I had a human translator standing next to me.  He whispered in my ear in English the questions the judges and lawyers were asking in French.  He then translated my answers into something the judges could understand.

In reality, the latter was completely unnecessary.  I am sure that I was the only person in the fairly crowded courtroom who was not completely fluent in both French and English.

There’s an old joke, which is sadly true:

What do you call a person who speaks three languages?  Trilingual.

What do you call a person who speaks two languages?  Bilingual.

And what do you call a person who speaks one language?  American.

At one point, the lead judge asked me a question about a U.S. federal law.  She read the statute clearly, in English, without even much of an accent.

The case involved an Internet gambling payment processor who made the mistake of sending some of the tens of millions of dollar in bets from U.S. players through banks in France, on their way to the ultimate operators in other parts of Europe.  When French prosecutors tracked this money, they charged the payment processor with money laundering, among other crimes.

In France, as in the U.S., money laundering requires more than simply sending money to another state or nation.  The money being sent has to be the proceeds of criminal activity.

Weirdly, the French prosecutors never hired an American lawyer to help them understand U.S. anti-gambling laws.  Instead they had a lawyer in their offices who spoke English do a quick Google search.

I don’t know what sites she looked at, but her conclusion was that all online gambling is illegal.  Specifically, if the bet takes place on the Internet, it violates U.S. federal law.

My testimony, given in English, was that American law is exactly the opposite.  All gambling, both on and off the Internet, is legal under both U.S. federal and state law, unless there is a specific statute that makes it illegal.  And American laws are constantly changing.

For a bet to be criminal, an absolute requirement for a money laundering charge, the prosecutor had to show where the bet took place, and when, and what form of gambling was involved.  Even proving the bet was made by an American on his laptop or iPhone is not enough.  Even a resident of Utah can make legal bets on the Internet, if he takes his computer to England.

I had no problem explaining that.  But answering specific questions, in French, was something entirely different.

I know enough French to be dangerous – to myself.  I can get about 80% of what someone says, if they speak slow and clear and use junior high school vocabulary.  Whenever I got stuck, which was very nearly every sentence, I turned to my translator.

The problem with almost understanding a conversation in a foreign language is you must let your brain slip into immersive mode.  There is no time to think and translate every word.

But while concentrating on what the French judges and lawyers were saying to me, there was a voice in my left ear speaking English.

This is a completely different experience from having earphones with a simultaneous translation.  There you only listen to the translator and ignore what the speakers are saying in their native languages.

That is what I should have done.  But I had been in Paris for about a week before the trial and had begun to get a general idea of what people were saying.

Of course, a general idea will not work in a trial, where every word is important.

As an example, I had written an Expert Report on the case, which had been previously translated into French for the court.  Part of my testimony involved the difference between “gaming” and “gambling.”  This is hard enough to explain in English.  French simply does not have those two words.

I worked with my translator to come up with a way to get this across.  In my Expert Report, “gambling” was translated sometimes as “les jeux de hasard” and sometimes as “les jeux d’argent,” meaning games of chance and games of money.  We decided that in my live testimony, all non-gambling games — that is, gaming, would always be simply “les jeux,” meaning the games.  Every time I was discussing gambling he would always translate it as “les jeux d’argent,” to make it clear we were talking about games played for money.

As to how I answered questions that I did not completely understand, because a small part of my brain was trying to think in French while a larger part was hearing and thinking in English – I kind of faked it.  I went with what I thought was being asked.

I know that, at least once, I talked how the federal Wire Act was enacted in 1961 to cut “the Wire,” which was a telegraph wire illegal bookies used, to make sure they got the results of horseraces before their bettors – think of the movie, “The Sting.”  I could tell from the expressions in the courtroom that I had guessed wrong, and that nobody had any idea why I was even talking about this.

Oh well.  By the end of my testimony, even the prosecutor agreed that simply because a bet was made on the Internet by an American did not mean that any U.S. federal or state law had been broken.  And without a crime, there can be no money laundering.

The judges agreed and found the defendant not guilty.

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I. Nelson Rose

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