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VOLUME 4 - CHAPTER 25
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25.9 Electronic Recordings

    25.9.4 Foreign Language Recording

    25.9.4.1 Jury Should Consider Accuracy Of Foreign Language Translation
    25.9.4.2 Jones Act Requires Admission Of English Translation Transcript Of Foreign Language Audiotapes

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VOLUME 4 - CHAPTER 25

    25.9.4.1    Jury Should Consider Accuracy Of Foreign Language Translation

RATIONALE: When a video or tape recording is made of a conversation in a foreign language, there may be an issue both as to (1) the audibility or understandability of the recording and (2) the accuracy of the translation. In such a situation, not only should the jury be given the usual instruction regarding the role of the transcript (see e.g., FORECITE National™ 24.2.7.3 [Transcript Of Foreign Language Recording]), but a special instruction regarding the role of the translation may also be appropriate. Such an instruction should make it clear to the jury that they are not bound to accept the translator’s interpretation of the recording.

POINTS AND AUTHORITIES: "When faced with a taped conversation in a language other than English and a disputed English translation transcript, the usual admonition that the tape is the evidence and the transcript only a guide is not only nonsensical, it has the potential for harm." (United States v. Fuentes-Montijo (9th Cir. 1995) 68 F3d 352, 355.) In such situations the function of the finder-of-fact is to weigh the evidence presented by the parties as to the accuracy of the proffered translation and to determine the reliability of the translation on the basis of that evidence. (U.S. v. Zambrana (7th Cir. 1987) 841 F2d 1320, 1337-37; cf. United States v. Torrez-Flores (7th Cir. 1980) 624 F2d 776, 781 [reliability of a translator is an issue of credibility for the trier of fact to resolve]; United States v. Cruz (11th Cir. 1985) 765 F2d 1020, 1023 fn 4 [interpretation of a foreign language translation presents a jury question]; U.S. v. Perez (E.D. PA 1999) 182 F3d 904.)

    Questions of credibility and reliability frequently arise, since "it is axiomatic that a translation of most foreign languages to English (and vice versa) can never convey precisely and exactly the same idea and intent comprised in the original text." (Zambrana, 841 F2d at 1337; see also Serafyn v. F.C.C. (DC Cir. 1998) 149 F3d 1213, 1224 ["...it is axiomatic that one can never translate perfectly"]; U.S. v. Carrasco (7th Cir. 1989) 887 F2d 794, 806 fn 19.) The jurors must decide the accuracy of the transcript translation, basing their determination on the evidence introduced at trial and not relying "in any way on any knowledge they may have of the language spoken on the recording." (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.18 [Foreign Language Recordings/Transcripts In English] (1999).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.3; 5.8; 7.3].

RESEARCH NOTES:

See Manual On Recurring Problems In Criminal Trials [3. Admissibility: Tape Recordings Of Conversations].

See also Manual On Recurring Problems In Criminal Trials [3a. Tape Recordings Of Conversations: Tape Recordings May Be Admitted Into Evidence].

See also Manual On Recurring Problems In Criminal Trials [3b. Tape Recordings Of Conversations: Pretrial Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3c. Tape Recordings Of Conversations: Court May Permit Jurors To Have Transcripts As They Listen To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3d. Tape Recordings Of Conversations: Courtroom Procedure With Regard To Tape Recordings].

See also Manual On Recurring Problems In Criminal Trials [3e. Tape Recordings Of Conversations: Jurors May Rehear Tape Recordings After They Have Begun Deliberations].

RELATED FEDERAL MODEL INSTRUCTIONS:

See 1st Circuit Pattern Jury Instructions - Criminal 2.08.

See also 5th Circuit Pattern Jury Instructions - Criminal 1.42.

See also 7th Circuit Federal Jury Instructions - Criminal 3.17.

See also 7th Circuit Federal Jury Instructions - Criminal 3.18.

See also 8th Circuit Model Jury Instructions - Criminal 2.06.

See also 9th Circuit Model Jury Instructions - Criminal 2.7.

See also 11th Circuit Pattern Jury Instructions - Criminal TI 6.

SAMPLE INSTRUCTION:

    Among the exhibits admitted during the trial were recordings that contained conversations in the _________ language. You were also provided with English transcripts of those conversations. The transcripts were provided to you [by the government] so that you could 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. 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. 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.

[7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL 3.18. [Foreign Language Recordings/Transcripts In English] (1999).]

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    25.9.4.2    Jones Act Requires Admission Of English Translation Transcript Of Foreign Language Audiotapes

PRACTICE NOTE: United States v. Morales-Madera (1st Cir. 2003) 352 F3d 1 held that the Jones Act (48 USC 864) mandating that court proceedings be conducted in English, requires that English transcripts of foreign language wiretap evidence must be made a part of the record by introducing them into evidence along with the audiotapes themselves. The best evidence rules requires that the tape recordings themselves must be furnished, absent agreement to the contrary, on the ground that, as the United States Supreme Court said in Gordon v. United States, 344 US 414 (1953), "the [recoding itself] is a more reliable, complete and accurate source of information as to its contents and meaning than anyone’s description of it."

    "An instruction that the jury should consider only what is on the tape and not what is in the English transcript would not be appropriate." (United States v. Morales-Madera, 352 F3d 1, *16.)