Certified Translation of Foreign Evidence
Certified translations of foreign language evidence play an important role in legal proceedings. Since transcribing and translating a conversation from a foreign language into English requires specialized knowledge that assists the trier of fact to understand the evidence, it is governed by the rules regulating expert opinion testimony. American jurisdictions differ somewhat as to the standards governing the admissibility of expert testimony, but with regard to the admissibility of a translation of a foreign language conversation, common sense dictates the basic ground rules. First, the offering party must elicit testimony from the witness who translated the conversation that he or she has sufficient proficiency in English and the foreign language – i.e., that he or she qualifies as an “expert” in both languages -to produce a reliable translation.
Second, the translator must testify that he or she used reliable methods and procedures in translating the conversation. If the offering party satisfies these two requirements, the transcript is admissible, unless the adverse party persuades the judge that the foreign language translation is nevertheless untrustworthy.
In summary, according to the Rules of Evidence, the offering party must establish its translation expert’s expertise in both the foreign language and English and the ability to translate from one to the other. If the party fails to provide testimony attesting to the accuracy of the translation, the foreign language translation should not be admitted.
Unfortunately, there is little case law pertaining to clearly defining what the offering party must show in order to establish that the person who prepared the translation was qualified to do so. As there is little ‘law’ to govern the topic, attorneys need to resort to common sense.
Accordingly, at a bare minimum, the language translator/ interpreter testifying as an expert 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 in each. Other helpful factors to demonstrate include:
- Evidence of formal education in each language
- Evidence that the witness has lived in locations where each language is spoken regularly
- Familiarity with the particular dialect or localisms in which the individuals in question spoke
- Formal training or prior experience in the art of transcribing and translating is another useful credential.
After testifying to his qualifications, the expert witness next must explain how he or she transcribed and then translated the conversation. The witness then authenticates both the transcription and the translation, along with testifying to their accuracy. This procedure suffices to secure admissibility of the translation, except in the rare case where the trial judge has grave doubts as to the witness’s expertise or credibility.
That being said, 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).
However, some courts reject the propriety of permitting a participant in the conversation to prepare the translation. For example, New York’s intermediate appellate courts are sharply divided on this issue: two such courts permit the practice, whereas a third has held that it is reversible error to allow an undercover officer’s transcribed translation of his own recorded conversations to go to the jury, insisting that a recording must be translated by an independent interpreter who would not be permitted to utilize the officer’s translation “while evaluating . . . the audibility of the tape.”
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. It would be cumbersome, time-consuming and expensive to insist that the opposing side call the individual who prepared a particular transcript and translation before they are allowed to introduce any given conversation and its translation. Instead, a witness with the necessary qualifications may testify that he has reviewed each of the recordings, transcripts, and translations, and is satisfied that the transcripts and translations are accurate.
Finally, it is important to note that 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 a jury to doubt whether the translator also cut corners with or misconstrued the essence of what was said.