Using English Transcripts To Follow Foreign Language Recordings Played At Trial

While trial court employed an "unorthodox" practice in admitting the foreign language recordings instead of the transcript, the circuit found the transcripts were sufficiently reliable notwithstanding corrections that had been made; while the expert who prepared the transcripts based on the foreign language lacked formal certifications, they were not required in light of his other interpreter experience, in United States v. Gutierrez, _ F.3d _ (8th Cir. July 8, 2014) (Nos. 13-1327, 12-4019)

When recorded conversations are played at trial, transcripts are usually given to the jury as an aid to follow the discussion. With English conversations, the admitted evidence consists of the recordings. A transcript is provided as a mere aid to understand the recordings. The Eighth Circuit recently noted the practices that should be used when a foreign language is used.

Trial Court Proceedings: Foreign Language Recordings Played At Trial

The case involved a conspiracy to distribute methamphetamine. Several recorded conversations in Spanish were played at trial. An expert testified about the process in which the transcript was created. The trial court allowed the audio recordings in Spanish to be admitted and allowed the jury to use the transcripts the expert prepared to help them follow the conversation. The transcripts were not admitted into evidence nor given to the jury during deliberations. The defendant did not challenge the process used by the trial court. On appeal, defendant Perez Sanchez challenged the admission of the expert testimony and claimed the trial court erred in "permitting the jury to read the transcripts that" the expert prepared. Gutierrez, _ F.3d at _.

Eighth Circuit Review: Noting Foreign Language Requirements

The Eighth Circuit found that the expert was sufficiently qualified as an expert "translator." The circuit rejected the defense claim that he was unqualified "because his certification in Iowa was limited to work as an oral language interpreter, and he was not certified by any organization as a translator." While formal certifications may be relevant to an expert's qualifications a "particular imprimatur" is not required. Gutierrez, _ F.3d at _. As the circuit explained:

That Rhodes was a certified and experienced interpreter and fluent in Spanish and English was certainly probative of his expertise. The work about which he testified included converting Spanish oral recordings into English, and then preparing a written record of the dialogue in English. As the district court observed, the exercise was a hybrid between pure oral interpretation and pure written translation. Whether or not Rhodes was formally certified by a professional organization as a written translator, he had enough knowledge of the language, skill in interpretation, and experience with both interpretation and translation to justify the district court’s receipt of his testimony as that of an expert under Rule 702.

Gutierrez, _ F.3d at _.

On the challenge to the use of the transcripts prepared by the expert, the circuit noted that the defendant did not object to the procedure used by the trial court, "although it appears to be unorthodox." The circuit noted the procedure to be used:

In a case with English-language recordings, the audio recordings typically are the only evidence of the conversation; any transcripts are furnished to the jury merely as an aid in following the audio. United States v. McMillan, 508 F.2d 101, 105-06 (8th Cir. 1974). But where the evidence is a foreign-language recording, the jury usually cannot understand the audio recording. Transcripts must be prepared and introduced as evidence so that the jury has a basis for considering the substance of the recording. United States v. Chavez-Alvarez, 594 F.3d 1062, 1068 (8th Cir. 2010). In this case, the court did not receive the transcripts as evidence, and the jury presumably could not understand the audio recording. But the transcripts, according to the district court, were “given to the jury to help the jury to whatever extent they can.” Perez Sanchez did not object to the jury’s use of the transcripts under this direction.

Gutierrez, _ F.3d at _. The circuit found the defense contention that the "transcripts were unreliable" to be unfounded. Merely because corrections were made to the transcripts did not make them unreliable. After the defense challenged the expert's "capability and reliability" at trial, the prosecutor clarified "that none of the many corrections were 'substantive in nature as to the gist of the conversation.'” Gutierrez, _ F.3d at _. Significantly, the defendant "did not offer his own version of the transcript, although he could have done so." Gutierrez, _ F.3d at _ (citing United States v. Baldenegro-Valdez, 703 F.3d 1117, un (8th Cir.) ("He did not offer his own, and he was able to cross-examine the translator with regard to accuracy at trial. As the accuracy of the translations was a question for the jury to decide, we find the district court did not abuse its discretion in refusing to exclude the translations.") (citation omitted), cert. denied, 133 S. Ct. 2403 (2013). Ultimately, the jury was left to determine to assess the reliability and weight of the transcripts.

Conclusion

The Gutierrez case highlights key issues to consider when foreign language recordings are used at trial. When foreign language is involved, the transcripts are the evidence. This ensures that the jurors are relying on the same translation. However, when the discussion is in English, the recordings are the evidence and the transcripts are a mere aid to facilitate the juror's listening to the conversation.

For more on the Chavez-Alvarez case, see Allowing The Jury To Review English-Language Transcripts Of Foreign Language Recordings During Deliberations.

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