According to 37 C.F.R. 1.637 (2003) Rule 647, when a party relies on a piece of documentary evidence written in a foreign language, they must have the document translated into English and file an affidavit attesting to the accuracy of the translation.
So what happens when both parties submit separate affidavits by two different document translators attesting to having submitted an accurate translation?
Essentially a battle of the experts ensues. This involves bringing in further experts to testify as to why one foreign language translation/ interpretation is more probative than the other. Common issues will likely include the credentials of the foreign language translator and why document translation by one translator/ interpreter is more credible than the other.
At the trial level, it is the trier of facts' role to evaluate which evidence is more credible - or if the Affidavits provided by two different translators are equally credible. On appeal, an abuse of discretion standard will be used, meaning the decision to use one piece of evidence over another has to be found to be both in error and to have had a significant impact on the outcome of the case.
In general, see Stevens v. Tamai. U.S. Court of Appeals for the Federal Circuit (2004).
To read our earlier legal translation blog entry "Determining the Unavailability of Foreign Language Translator/ Interpreter to Provide Expert Witness Testimony in Person- Telephonic Evidence", click here. And to read "Admissibility of Telephonic Expert Witness Testimony by Foreign Language Translator/ Court Interpreter", click here.
