Specifically, we looked at the issues raised when a recorded conversation is presented to the jury. In this article, we look at alternative options to presenting a recording to a jury, and offer some concluding remarks on jury instructions.
In lieu of playing the recording to the jury, some courts have opted to have the transcript read aloud to the jury. However, at least one court, reasoning that even a neutral reader may interject emphasis or distortion into the process, concluded that the better way is simply to distribute the foreign language translations to the jurors, watch as they read the transcripts to themselves, and then collect the transcripts again.
The latter approach may be preferable – so long as the judge is confident that each of the jurors is sufficiently literate in English to read and understand the foreign language translation.
Jury Access to Translations During Deliberations
It is not unusual for a jury to seek to examine, during its deliberations, evidence that has been admitted at trial. A number of courts have held that a trial judge has discretion to permit jurors to have a foreign language translation of a conversation in the jury room during deliberations.
But some courts have expressed concern generally as to whether allowing a tape recording to go to the jury room emphasizes that evidence unduly and such concerns are equally applicable to the translation of a foreign language conversation.
What about the Court Reporter Act and the Jones Act?
Two federal statutes are occasionally cited in court opinions relating to transcripts and translations of recorded conversations. The Court Reporter Act requires that “all proceedings in criminal cases [held] in open court . . . shall be recorded verbatim.” This provision does not, however, require a court stenographer to transcribe the contents of recordings that are played as evidence at a trial.
The Jones Act provides that “(a)ll pleadings and proceedings in the United States
District Court for the District of Puerto Rico shall be conducted in the English language.” The First Circuit has held that “(p)roviding an English-language transcript of (a recorded conversation conducted in Spanish) is more than merely useful when the recorded language is not English; for Jones Act purposes, it is necessary.” Thus, it violates the Jones Act for Spanish-speaking jurors to “cast aside” the English translation and use Spanish transcripts instead.
A foreign language translation plays a very different role than does the transcript of a conversation conducted in English. It makes no sense for the judge to instruct jurors, as many courts insist with regard to transcripts of English language tapes, that the translation is merely an “assistance to understanding” the recording, or that they should disregard the translation if what they hear conflicts with what they read. Rather, the judge must instruct the jury to regard the transcript as evidence – and how to evaluate it.
In summary, recorded conversations and transcripts of those conversations play a vital role in civil and criminal trials, often providing the evidence needed to establish a defendant’s guilt and, occasionally, his or her innocence. Rather than treating a transcript as a non-evidentiary “aid to understanding” the recording, a transcript of a recording should be recognized for what it is, i.e., opinion evidence as to the contents of the recording, and its admissibility should be governed by the same rules and procedures that apply to opinion evidence generally.
Perhaps today more frequently than ever, prosecutors and defendants or civil litigants are seeking to use recordings of conversations conducted in a language other than English as evidence. However, such recordings are meaningless to the typical juror unless a translation is provided. A translation of a foreign language conversation constitutes expert opinion evidence, which should be subject to the same principles and procedures as those governing expert opinion generally.
Application of the appropriate standards and procedures to recordings, transcripts, and translations will assure that the party offering the evidence will have a fair opportunity to establish the accuracy of its evidence to the judge and jury, that the adverse party will be able to challenge that evidence, and that the jury will have an adequate basis on which to evaluate it.