Federal Evidence Review

Passport and travel documents introduced in foreign language violated requirement that evidence be admitted in English language, but error was not fatal where defendant failed to object at trial, in United States v. Diaz, 519 F.3d 56 (1st Cir. 2008)

A recent case noted the requirement that documents in foreign languages should be translated into English and the failure to do so is error.

Defendant Diaz was charged with unlawful possession of a firearm by an alien. At trial, the government introduced his Dominican Republic passport and a Dominican Republic travel document “granting the United States permission to deport Santo Romero, date of birth April 7, 1965, to the Dominican Republic.” Both documents, in Spanish, were admitted to show the defendant was unlawfully in the country. The jury acquitted the defendant on the possession as a prior felon count but convicted on the second possession as an unlawful alien count. After his conviction, the defendant challenged the admission of these documents as error under the English language requirement.

The circuit agreed that the foreign-language documents were erroneously admitted violating an English Language Requirement. See, e.g., United States v. Rivera- Rosario, 300 F.3d 1, 5, 7 n.4 (1st Cir. 2002) (“It is clear, to the point of perfect transparency, that federal court proceedings must be conducted in English.... [P]arties are required to translate all foreign documents into English.”); see also United States v. Contreras Palacios, 492 F.3d 39, 43 n.7 (1st Cir. 2007) (“The birth certificate and cedula, both in Spanish, were offered into evidence by the government without written English translations. Although both were translated by an interpreter for the district court, that translation was not incorporated into the trial transcript. This was error.”).

However, there was no plain error because the untranslated documents were “admitted for a limited purpose, and their evidentiary significance was facially apparent in that it comprised Diaz’s photo (on both documents), the use of his alias (on both documents) and his signature and birth date (on the passport). Thus it cannot be said that a ‘miscarriage of justice’ resulted from the district court’s decision to admit the documents without translation.” See Diaz, 519 F.3d at 64-65.

One objective of the English Language Requirement is to ensure that the jury considers the same evidence, which may not be possible if jurors have a different level of understanding of the foreign language in issue. The Diaz case points out that the failure to comply with this requirement is error. The error was not fatal in Diaz since the defendant failed to object at trial and the evidence was offered for a limited purpose.