Qualifying the Legal Translator for Evidentiary Translations

Legal Translators for Translating Foreign Recorded Conversations

The offering party must establish its translation witness’s expertise in both the foreign language and English, and their ability to translate from one language to the other. If the party fails to provide testimony attesting to the accuracy of the translation, the translation will not be admitted.  Surprisingly, there is little case law discussing precisely what the offering party must show in order to establish that the person who prepared the translation was qualified to do so, but common sense suggests the following:

  • At a bare minimum, the witness must establish that he or she has sufficient proficiency in each language to be able to understand, and be understood by others who speak or write each language.
  • Evidence of formal education in each language enhances the translator’s credibility.
  • Evidence that the witness has lived in locations in which each language is spoken regularly will strengthen the witness’s qualifications.
  • Familiarity with the particular dialect or localisms which the foreign language speakers used is useful.
  • Formal training or prior experience in the art of transcribing and translating is another useful credential.

After testifying to his or her qualifications, the witness will explain how he or she transcribed and then translated the conversation. The witness will then authenticate both the transcription and the translation, and will testify to their accuracy. This procedure suffices to secure admissibility of the foreign language translation, except in the rare cases where the trial judge has grave doubts as to the witness’s expertise or credibility.

Courts are divided as to whether someone who was a participant in a recorded conversation may later transcribe or translate the conversation. Given that a translation is opinion evidence of the transcriber/translator, there is no inherent reason to reject a translation prepared by a participant in the conversation (e.g., an undercover officer).

Some courts, however, reject the propriety of permitting a participant in the conversation to prepare the translation. New York’s intermediate appellate courts, for example, are sharply divided on this issue. Two such courts permit the practice. A third, by contrast, has held that it is reversible error to allow an undercover officer’s transcribed translation of his own consensually recorded conversations to go to the jury; insisting that a recording be translated by an independent interpreter who would not be permitted to utilize the officer’s translation “while evaluating . . . the audibility of the tape.”

Some courts in other states will allow participants to transcribe or translate conversations, but with certain limitations. Often, a case will involve numerous conversations–a typical wiretap or oral intercept investigation may involve hundreds, even thousands–which were transcribed and translated by several different people over the course of a lengthy investigation.

Finally, a translation that accurately captures the gist of a conversation, and therefore is good enough for investigative purposes, may prove embarrassing if offered as evidence at trial. Minor errors or omissions may cause the jury to doubt whether the translator also cut corners with or misconstrued the essence of what was said.

Next up: a look at the methods and procedures available.

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