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subscribe to an oath designed to awaken his conscience and alert him to the necessity of stating the truth. This fact was confirmed by Mr. Sasagawa during his August 25, 1984 interview, after reviewing the English oath and Mr. Mochizuki's interpretation:

this is Mr. Mochizuki's way of talking, and in this particular case, he was probably not taking notes . . in this case, it was too much rhetoric. .

At any rate, if the word, "will you swear" is not included

A: That's right, without it, it would be difficult as a translation I think. The Japanese do not understand the meaning of "oath" very well, but, of course its important in American courts.

it would not be an oath if one is told, I would like you to kindly convey only the truth."

43/ A: Yes, that's right.

On the second day of his testimony, moreover,

Mr. Kamiyama did not subscribe to an oath of any kind.

The

Grand Jury tapes show that Mr. Kamiyama made no response to

the interpreter's summarization of the oath.

Nevertheless,

the interpreter indicated to the prosecutor and the Grand

Jury that he responded "yes."

In the absence of any

response, Mr. Kamiyama could not be considered a sworn

witness.

More fundamentally though, this incident

43/

See, Exhibit L, supra at 19, 30.

44

demonstrates the Grand Jury interpreter's willingness to

improvise or embellish responses to the detriment of

Mr. Kamiyama.

Also significant in this regard is the fact that

the audio tapes of Mr. Kamiyama's third day of testimony reveal no oath whatsoever. This is so despite the fact that

the written transcript indicates that an oath was

administered and that the recording machine was started

prior to the alleged administration of the oath. Again, in the absence of a valid oath, Mr. Kamiyama could not properly have been subjected to prosecution for perjury.

[blocks in formation]

You are entitled to certain rights, and let me
explain to you what those rights are. First, you
may refuse to answer any question if a truthful
answer to that question would tend to incriminate
you, personally, in any way, shape or form. Do
you understand that?

The interpreter, however, conveyed this to Mr. Kamiyama as:

there are several rights granted to you. I will have the pleasure of explaining these to you. First, you are able to refuse answers to questions which may cause you to fall into crime.

Do we have your kind understanding?

For a person unfamiliar with American culture and legal

procedures, such as Mr. Kamiyama, this interpretation does

45

not adequately describe the protections afforded by the

Fifth Amendment.

This same pattern of misinterpretation was

followed during Mr. Kamiyama's subsequent Grand Jury

appearances.

On July 16, 1981, for example, the prosecutor

stated:

At any time, Mr. Kamiyama, that I ask you a
question and you want to invoke your Fifth
Amendment privileges, please feel free to do so.

The interpreter, however, stated:

And, uh, whenever I ask you a question, well,
according to the revised item of the Fifth
Article, you are protected, so, as for using that
that is your right.

(Emphasis added.)

Similarly, on July 21, 1981, Mr.

Flumenbaum noted:

If you

I am asking you questions, Mr. Kamiyama.
want to refuse to answer the questions, but you
have to answer whatever questions I ask you. If
you want to refuse to answer them and exercise
your Fifth Amendment rights, you can.

This statement was interpreted as follows:

[ocr errors]

.

.

Now, I am directing my questions to you, but, if
you will insist on refusing : : . according to

uh the Fifth Article, you know,
amended

well something like an amended law, is it?

According to that, you have the right to refuse. However, uh, we think we'd like you to answer the questions we have asked you as much as possible.

[blocks in formation]

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lack of familiarity with basic legal expressions and principles. On this ground alone, the interpreter was unqualified to participate in formal Grand Jury pro

44/ ceedings.

[blocks in formation]

The Grand Jury interpreter's inexcusable lack of familiarity with elementary legal terms was again

error.

44/

In a related matter, Mrs. Sato's review of the Grand Jury tapes revealed yet another prejudicial interpretation

During his July 16, 1981 Grand Jury appearance,
Mr. Kamiyama read the following prepared statement in
Japanese:

I have done . . preparations in order to answer
the questions concerning the content of the
affidavit submitted to the Justice Department the
other day. However, as I am the person who is the
object of the investigation this time, I would
like to maintain my rights quaranteed by the
Constitution.

Mr. Mochizuki, however, interpreted this language as follows:

I am prepared to answer questions dealing with
information contained in the affidavit which I
submitted to the Department of Justice. However,
since I am a target of this investigation, I wish
to reserve the rights to claim my constitutional

privileges with respect to other questions. (Emphasis added.) The interpretation obviously distorts Mr. Kamiyama's principal intention. Rather than emphasizing his desire to retain his Fifth Amendment privilege with respect to questions dealing with the affidavit, the interpretation implies that Mr. Kamiyama wishes to waive his Fifth Amendment rights as they pertain to the affidavit. See Exhibit M, supra.

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demonstrated during the prosecutor's futile effort to warn

Mr. Kamiyama of the consequences of perjurious testimony.

Such warnings are not constitutionally compelled, but are

standard practice in the United States District Court for

the Southern District of New York and various other courts

as a matter of essential fairness.

Thus, on July 9, 1981,

the first day of Mr. Kamiyama's testimony, the following

exchange occurred:

(MR. FLUMENBAUM) : Finally, Mr. Kamiyama, if you should give a false answer or fail to testify completely and truthfully in response to a question that I ask you, you could be charged with a separate criminal, uh, violation for perjury or for obstruction of justice.

Do you understand that?

(MR. MOCHIZUKI): And and, uh, with today's questions and answers, uh, if there are any false answers or to neglect to testify, separately, eee there is a possibility that you will be criticized according to criminal law.

That means not the tax

A: (MR. KAMI YAMA) : law, but .

(MR. MOCHIZUKI): Does that mean that on top of or apart from the tax laws?

[merged small][merged small][merged small][merged small][merged small][ocr errors][ocr errors][ocr errors]

A: (MR. KAMIYAMA): That means (that I shall be) charged with criminal perjury?

(MR. MOCHIZUKI): Does that mean, once again, that I shall be charged for . . I am trying to find the word. (Mr. Flumenbaum whispers: *perjury") fraudulent answers or fraudulent, well, negligence of testimony or.

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