Allowing The Jury To Review English-Language Transcripts Of Foreign Language Recordings During Deliberations

Eighth Circuit rejects challenge to the jury’s use of English-language transcripts of recorded telephone communications in Spanish during deliberations, in United States v. Chavez-Alvarez, 594 F.3d 1062 (8th Cir. Feb. 18, 2010) (Nos. 09-1308, 09-1533)

The use of transcripts of recorded conversations is an accepted aid to assist the jury in listening to the evidence. Voice identification issues may be considered under FRE 901(b)(5), which permits voice identification by lay opinion. See generally Voice Identification Under FRE 901(b)(5). Normally, a recorded conversation is admissible unless any unintelligible portions are so substantial that the recording as a whole is untrustworthy. See, e.g., United States v. Abonce-Barrera, 257 F.3d 959, 963 (9th Cir. 2001) (dismissing defendant’s contention that “the tapes were of such poor quality and the process of transcription so problematic that the district court should have ordered ‘the wholesale exclusion of the tapes’” because of failure to show that the recording as a whole was untrustworthy). The use of transcripts is particularly important where foreign languages are involved. Where foreign languages are involved, it is essential that the jury consider the same translations. Are there any problems in allowing the jury access to transcripts of foreign languages during deliberation? The Eighth Circuit recently considered this issue recently.

In the case, the defendants were prosecuted for conspiring to distribute methamphetamine. Cell phone conversations were intercepted. At trial, recordings of the intercepted calls were played for the jury. Spanish recordings were translated into English. A linguist testified that the transcripts which were prepared from the recordings were accurate. The trial court overruled a defense objection to submitting the transcripts to the jury during their deliberations. The defendants were convicted. On appeal, one defendant claimed the trial court erred in providing the English-language transcripts of the recorded communications during the jury deliberations as cumulative and prejudicial.

The Eighth Circuit noted that the use of transcripts was left to the trial court’s discretion and found no error. As the circuit explained:

“Without translation, an English-speaking jury would not have been able to understand the content of recorded conversations that took place
in Spanish. Chavez-Alvarez does not contend that the translations were inaccurate or that the speakers were misidentified, and we reject his assertion that allowing the transcripts in the jury room was cumulative. The tapes were properly admitted into evidence, and the transcripts assisted the jury in evaluating that evidence. Thus, the district court did not abuse its discretion in permitting the jury to refer to them during deliberations.”

Chavez-Alvarez, 594 F.3d at 1069. The circuit noted the following cases in support:

  • United States v. Placensia, 352 F.3d 1157, 1165 (8th Cir. 2003) (“conclude[ing] the district court properly allowed the translated transcripts of foreign language tape recordings as evidence for use by the jury during trial and deliberations where Rosario conceded the accuracy of the transcripts”)
  • United States v. Grajales-Montoya, 117 F.3d 356, 367 (8th Cir. 1997) of translated Spanish conversations admitted; noting the defense “has suggested no reliable means of enabling people who do not speak Spanish to interpret inflections and tone, and we cannot think of any”)

Some circuits also provide a suggested jury instruction to guide the jury’s consideration on the use of a transcript involving a foreign language. For example, the Eighth Circuit Judicial Committee on Model Jury Instructions 2.06B (2009) provides:

2.06B. Transcript Of Foreign Language; Tape-Recorded Conversation1

“Among the exhibits admitted during the trial were recordings that contained conversations in the _______ language. You were also provided English transcripts of those conversations. The transcripts were provided to you [by the government] so that you can consider the content of the conversations on the recordings. Whether a transcript is an accurate translation, in whole or in part, is for you to decide. You should not rely in any way on any knowledge you may have of the language spoken on the recording; your consideration of the transcripts should be based on the evidence introduced in the trial.2
bq. “[In considering whether a transcript accurately describes the meaning of a conversation, you should consider the testimony presented to you regarding how, and by whom, the transcript was made. You may consider the knowledge, training, and experience of the translator, as well as the nature of the conversation and the reasonableness of the translation in light of all the evidence in the case.]”3

Notes on Use

  1. This instruction should be given if the parties do not stipulate to the transcript. In United States v. Gonzalez, 365 F.3d 656, 660 (8th Cir. 2004), the court encouraged the parties to produce an official or stipulated transcript, which satisfies all sides. If they are unable to do so, “then each side should produce its own version of a transcript or its own version of the disputed portions. In addition, each side may put on evidence supporting the accuracy of its version or challenging the accuracy of the other side’s version.” (quoting United States v. Wilson, 578 F.2d 67, 69-70 (5th Cir. 1978)). In the opinion of the Committee, one transcript with bracketed alternatives can also be used to aid the jury where the dispute only involves short disagreements.
  2. Jurors should be instructed to rely only on the English translation, not on their own knowledge of the foreign language. United States v. Gonzalez, 365 F.3d 656, 661-62 (8th Cir. 2004). The court cited with approval the Seventh Circuit Federal Criminal Jury Instruction § 3.18, and encouraged district courts to “use an instruction similar to it when introducing an English transcript of dialogue that originally was spoken in another language.” Id. at 662.
  1. This language may be included if desired. United States v. Gonzalez, 365 F.3d 656 (8th Cir. 2004).

In contrast, the model instruction for English-language transcripts advises the jury that what they hear, not read, is the evidence. This is not possible in foreign-language contexts as not all the jurors may understand or have the same familiarity with the foreign language. Eighth Circuit Judicial Committee on Model Jury Instructions 2.06A (2009) states:

2.06A. Transcript Of Tape-Recorded Conversation

“As you have [also] heard, there is a typewritten transcript of the tape recording [I just mentioned] [you are about to hear]. That transcript also undertakes to identify the speakers engaged in the conversation.
bq. “You are permitted to have the transcript for the limited purpose of helping you follow the conversation as you listen to the tape recording, and also to help you keep track of the speakers. Differences in meaning between what you hear in the recording and read in the transcript may be caused by such things as the inflection in a speaker’s voice. It is what you hear, however, and not what you read, that is the evidence.
bq. “[You are specifically instructed that whether the transcript correctly or incorrectly reflects the conversation or the identity of the speakers is entirely for you to decide based upon what you have heard here about the preparation of the transcript, and upon your own examination of the transcript in relation to what you hear on the tape recording. If you decide that the transcript is in any respect incorrect or unreliable, you should disregard it to that extent.]1
h3. Notes on Use

1. This paragraph should be given if the parties do not stipulate to the transcript. In United States v. Gonzalez, 365 F.3d 656, 660 (8th Cir. 2004), the court said: “[W]e believe that whenever the parties intend to introduce a transcript at trial, they should first try ‘to produce an ‘official’ or ‘stipulated’ transcript, one which satisfies all sides,’ United States v. Cruz, 765 F.2d 1020, 1023 (11th Cir. 1985) (quoting United States v. Wilson, 578 F.2d 67, 69-70 (5th Cir. 1978)). If they are unable to do so, ‘then each side should produce its own version of a transcript or its own version of the disputed portions. In addition, each side may put on evidence supporting the accuracy of its version or challenging the accuracy of the other side’s version.’ Id. (quoting Wilson, 578 F.2d at 69-70).” In the opinion of the Committee, one transcript with bracketed alternatives can also be used to aid the jury where the dispute only involves short disagreements.

For more information on the considering foreign language evidence, see Documents Introduced In Foreign Language Violated English Only Requirement.


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