Certified Translation of Foreign Records
We’ve blogged about legal translation services that are required to authenticate non-English records. A precondition to admissibility of any document is authentication of the document or record. There are several provisions under the Federal Rules of Civil Procedure and the Federal Rules of Evidence that are of particular pertinence in cases involving public records and documents and foreign records of regularly conducted business activity.
The general requirement in FRE 901 provides that “authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.” While FRCP 44(a)(2) and FRE 902, discussed below, may provide for more direct avenues of authenticating foreign documents. Conversely, a district court abuses its discretion if it requires a certification as a mandatory pre-requisite to authenticating the document and refuses to consider evidence proffered by the proponent.
FRE 902(3) provides that a foreign public document that purports to be executed or attested by an official empowered to execute it is self-authenticating if it is:
[A]ccompanied by a final certification as to the genuineness of the signature and official position (1) of the executing or attesting person, or (2) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in chain of certificates of genuineness of signature and official position relating to the execution or attestation.
FRE 902(3) provides further that:
A final certification may be made by a secretary of an embassy or legation, consul general, consul vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States.
FRE 902(3) is derived from FRCP 44(a)(2) but may be broader than that rule since it applies to public documents and is not limited to public records. A public document has been defined as an official paper, a document on file in a public office, and a publication printed by order of Congress or either house thereof. A public record has been defined as a record required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law, or directed by law to serve as a memorial and evidence of something written, said, or done.
In a case where veracity and accuracy of a translated foreign pleading was at issue, the translated document was deemed inadmissible. Defendants had included a notarized affidavit signed by the alleged translator detailing her education and experience with translations. But the court held that the foreign pleading did not meet the proper standard for self-authentication of foreign public documents under Rule 902(3).
When reading FRE 902(4) together with FRE 902(3), a foreign public record, or an officially filed or recorded document, may be proved with a copy accompanied by: (a) a certificate made by “the custodian or other person authorized to make the certification” (FRE 902(4)); and (b) a “final certification” (FRE 902(3)) made by a diplomatic or consular officer.
The diplomatic or consular officer attests to the “genuineness of the signature and official position” of the first certifier.
There is a chain of certificates, with a final certificate by the diplomatic consular or consular official attesting to the signature and authority of those in the chain. The first certificate should bear an actual signature, since that is the signature of the signer who made or supervised the copying of the original document. The “custodian” executes this certificate, but in foreign countries the custodian may not be authorized to certify copies. FRE 902(4) is satisfied by a certificate from any “other person authorized to make the certification.”
The first certificate should indicate the official position of its issuer and the name and location of his office. It should state that the copy is a true and correct copy of a document filed or recorded by the named public entity.
Subsequent certificates should state the official position and the names and locations of their certified authorities. They should state that the signature on each certificate is genuine and that the signer of the prior certificate had authority to certify the documents or was in a position to know whether such documents are genuine.
The requirements for the final certification are the same as those imposed by FRE 902(3) for final certification of the originals of foreign records.
Contact legal translation service All Language Alliance, Inc. to obtain certified translation of foreign language documents.
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