Admissibility of Certified Document Translations in Jury Trials
Legal document translation plays an important role in in evidence preparation for jury trials. Courts have long struggled over the most appropriate way to present recorded foreign-language conversations and foreign language translations to the jury. Typical questions raised include: Should the recordings be played at all? If not, what alternatives are available?
In addition, issues sometimes arise as to the applicability of specific statutes. When a recorded conversation is entirely or substantially in English, the preferred practice is to distribute copies of the transcript or project the transcript on a screen for the jury. This allows the jury to read the transcript as they listen to the recording and jurors are able to assess whether the transcript is accurate and to hear the participants’ tone of voice, inflection, etc. – which assists them in evaluating what each speaker is attempting to convey.
However, when the conversation is in a foreign language it is usually best to distribute the foreign language translations to the jury without playing the recording. There are several reasons for this. First, the obvious: foreign language conversations will be incomprehensible to jurors who do not speak that language. Those jurors, therefore, would not be able to evaluate the accuracy of a direct transcription of the conversation, let alone the accuracy of the translation.
Third, playing the conversation can create a substantial problem if some, but not all, of the jurors speak the language in question. In other words, the bilingual jurors would become expert “witnesses” who, because they share their interpretations (which may not be accurate) with fellow jurors in the jury room rather than on the witness stand, cannot be cross-examined by the adverse party. Although playing the recording to a partially bilingual jury is not by itself reversible error, the risks of doing so seem to outweigh the questionable benefits.
That being said, however, there are circumstances where playing at least a portion of a conversation for the jury may be useful – and maybe even necessary to assure a fair trial. For example, doing so may be useful where disputes exist as to the identification of voices or the audibility or intelligibility of the recording. In a criminal case one conversation consists of a phone call made to a phone listed in defendant X’s name. A man answers the call and identifies himself as X, and, during the conversation, mentions his wife and children by name, talks about the evening – all facts which investigators have independently corroborated. All of this convincingly establishes that X was in fact the speaker.
Next, the prosecutor plays the recording of another phone conversation, the translation of which is as follows:
Defendant Y: Hello.
Defendant X: Hello. Do you know who this is?
Defendant Y: Yes. Is everything set?
Defendant X: Almost. I still have to talk to the guy. Meet me when and where we said.
Although the call was made from a phone that investigators cannot connect to defendant X and neither participant used X’s name, the government identifies X as the caller based on an agent’s testimony that he has listened to the two recordings, has compared the voices, and is convinced that X, the recipient of the first call, is the person who made the second call. If X denies he participated in the second call, it may be worthwhile to play both conversations to the jury, even though they don’t speak the language, so jurors can assess whether the voice attributed to X in the second call sounds like X’s voice in the first call.
Another example is where the adverse party challenges the recording’s audibility (capability of being heard) or intelligibility (capability of being understood), the offering party might reasonably offer to play a portion of the tape to prove its audibility and intelligibility. Likewise, the adverse party may offer to do so to prove the opposite. If the adverse party emphasizes the poor quality of the original recording, the offering party might offer to play a portion of an electronically enhanced recording that was used in preparing the transcript and translation.
More so, inflection and emphasis are guideposts to meaning. We all know that the printed word, stripped of spoken inflection, can be very misleading. Consider how, depending on tone of voice, the reply, “Yeah, right,” either can indicate substantial agreement or its opposite. An attorney who claims the lack of inflection and tone of the words on the page misconstrue her client’s meaning should do more than merely seek permission to play the conversation to the jury. Through an expert witness fluent in the language, the attorney should pinpoint the particular passage or passages in question and elicit testimony why, based on how the words were said, they should not be taken literally.
Finally, challenges to a transcription’s accuracy could be resolved by playing the recording of the foreign language conversation. If the adverse party’s expert asserts that a particular word or passage of a conversation was transcribed incorrectly (and therefore is mistranslated), the trial judge might consider playing that portion of the conversation for the jury as each witness testifies about it, so the jury can hear it for themselves. However, this presupposes that a juror who does not speak a language will nevertheless be able to discern which transcription correctly captured the “sound” of what was said, which is a doubtful proposition at best.
Contact legal translation service All Language Alliance, Inc. to obtain professional translation of foreign evidentiary tape recordings and transcripts.
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