February 9, 2011
Today, the Indiana Supreme Court has held that an English language translation transcript of foreign-language recorded conversations are admissible as substantive evidence in
Romo v. Indiana, 941 N.E.2d 504 (Ind. Ct. App. 2011), Case No. 49S04-1009-CR-499. Thus, the admission of this evidence is not governed by
Evidence Rule 1002.
less..
In this case, a criminal defendant's conversation with a police informant in Spanish was clandestinely recorded. The prosecutor had an English-language translation of that conversation prepared and introduced it, over objection, into evidence at trial. The trial court refused to play the original recording for the jury, although it was admitted into evidence. The defendant was convicted and appealed. The convictions were affirmed by the Court of Appeals and the Indiana Supreme Court granted transfer to discuss the admissibility of the transcripts.
The Court noted that transcripts of audio recordings are generally not admissible as substantive evidence. Instead, they are generally only used to assist the jury as it listens to an original audio recording. However, the Court saw no point to applying that Rule 1002 to this context.
Applying the rule to limit the evidence of content to the original Spanish recordings would not serve the purpose of the rule because it could not prove any content to the jury. We thus hold that the admission into evidence of foreign language translation transcripts is not governed by Evidence Rule 1002. ... In such circumstances, it is the English language transcript, not the foreign language recording, that will be the overwhelming, if not exclusive, source of relevant, probative evidence. ... We hold that English language translation transcripts of statements recorded in a foreign language, if otherwise admissible, may properly be considered as substantive evidence.
However, even though it may not be helpful to play a foreign-language recording, "it is generally the better practice to" do so.
Upon request of a party, a trial court should play for the jury such recording, if otherwise admissible. A refusal to do so will be reviewed on appeal for abuse of discretion, including a consideration of the nature of the request and the proffered reasons for playing the recording. No abuse of discretion will result where, as here, the defendant not only fails to support such request with reasons why playing the recording would provide discernible, relevant evidence but also concedes to the trial court that he doesn't "see any point" in playing the Spanish audio.
The Court's rationale highlighted the fact that it was unlikely that any member of the jury spoke the foreign language in question. If this issue arises in any of your cases, it may be worth asking about the foreign-language abilities of the jury during voir dire.
Lessons:
- Evidence Rule 1002 does not govern the admissibility of English-language translations of foreign-language audio recordings.
- English-language translations of foreign-language audio recordings are admissible as substantive evidence.
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