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Univ. of South Carolina School of Law

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Tuesday, December 14, 2010

Play It Again: Court Of Appeals Of Texas Finds No Problem With Admission Of Translation After Playing Of Spanish Confession

Texas Rule of Evidence 1009(a) provides that

A translation of foreign language documents shall be admissible upon the affidavit of a qualified translator setting forth the qualifications of the translator and certifying that the translation is fair and accurate. Such affidavit, along with the translation and the underlying foreign language documents, shall be served upon all parties at least 45 days prior to the date of trial.

Meanwhile Texas Code of Criminal Procedure 38.30(a) provides that

When a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for the person charged or the witness. Any person may be subpoenaed, attached or recognized in any criminal action or proceeding, to appear before the proper judge or court to act as interpreter therein, under the same rules and penalties as are provided for witnesses. In the event that the only available interpreter is not considered to possess adequate interpreting skills for the particular situation or the interpreter is not familiar with use of slang, the person charged or witness may be permitted by the court to nominate another person to act as intermediary between the person charged or witness and the appointed interpreter during the proceedings.

In its recent opinion in Peralta v. State, 2010 WL 4851388 (Tex.App.-El Paso 2010), the Court of Appeals of Texas, El Paso, found that the government's compliance with these two provisions rendered meritless the appellant's argument that the introduction of the translation of his Spanish language confession after that confession was played to the jury was improper. I'm not sure that I agree.

In Peralta, Daniel Peralta was charged with sexually assaulting his wife. After Peralta was arrested in connection with this crime, he gave a videotaped confession, with both the questions and answers being in Spanish. After the prosecution played the video for the jurors at trial, it introduced a transcribed English translation of the video that was accompanied by a sworn affidavit detailing the interpreter's qualifications.

After Peralta was convicted, he appealed, claiming, inter alia,

that because the video was entirely in Spanish, it was error to play it to the jury without a qualified interpreter providing a contemporaneous translation either by simultaneous in-court translation or by embedding a translation into the video via subtitles. The State respond[ed] the video was properly admitted since no contemporaneous translation was necessary and the video was properly authenticated.

In siding with the State, the Court of Appeals of Texas, El Paso, found that the interpreter was properly qualified as an expert under Texas Code of Criminal Procedure 38.30(a) and that the translation was properly admitted under Texas Rule of Evidence 1009(a).

With due respect to the court, I don't think that it really addressed the merits of the appellant's argument. His argument really seemed to be based upon the rule of completeness, Texas Rule of Evidence 106, which provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may at that time introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. "Writing or recorded statement" includes depositions.

In other words, Peralta's argument seemed to be that even if the translation was admissible, it should have been admitted contemporaneously with the Spanish language video. And this makes sense to me. You could easily see a defendant saying something in a sarcastic or joking manner like, "Yeah, I'm a bad guy." If this statement were in Spanish and the translation were presented simultaneously with a recording of the statement, jurors could disregard this statement. If the translation were not presented until after the recording were played, the jurors might not make this realization.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/12/1009-peralta-v-state-sw3d-2010-wl-4851388texapp-el-paso2010.html

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Comments

They would have had to bring in a professional translation agency anyway, to make the transcription of the video and it does sound like it would have made sense to provide contemporaneous translation, and not just from Peralta's point of view. Obviously, I don't know the ins and outs of the case, so I can't really comment on that but surely Peralta would want a fair trial and the prosecution wouldn't want to knowingly create a weakness in their case that could be picked up on? Seems like a bit of a strange one.

Posted by: Jodie | Dec 16, 2010 2:47:40 AM

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