Foreign Language Digital Evidence, Legal Translation and Plain View Doctrine

We’ve blogged about multi-language translation and professional legal translation of foreign-language digital evidence and e-Discovery documents. There are proponents of eliminating the Plain View Doctrine from searches of computer hard drives and related digital evidence. The issue typically comes down to confusion between what constitutes a computer search and what constitutes a forensic examination. The problem is that a warrant to search digital property can easily be transformed in a general search of one’s digital property because the police performing the search can easily perform a comprehensive search in order to properly execute the warrant.

In other words, while looking for digital evidence for one crime one can be accused of another via the Plain View Doctrine. Realizing this problem, the 9th Circuit Court of Appeals of the Western District advocated the elimination of the doctrine from digital evidence. (U.S. v. Tamura, 694 F.2d 591 (9th Cir. 1982).

Another issue arises particular to foreign language evidence. In the physical world, if one was searching through a file cabinet an item could easily come into plain view in the normal process of opening a file. However, if that document was in a foreign language and the officer was not able to read that foreign language, then the plain view doctrine does not apply as it fails to meet the requirement of being immediately recognized as illegal or contraband.

The same should apply to digital foreign language evidence, however, under the current use of the plain view doctrine an entire hard drive can be seized as evidence regardless of the actual document being “immediately recognized”.

Up Next: Which Party Pays the Costs of Document Disclosure, Including Multi-Language Translation?

All Language Alliance

by Legal Translator & Court Interpreter

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