Wednesday, December 29, 2010
Battle Of The Transcripts: Eleventh Circuit Finds No Problem With Circumscription Of Paralegal Transcriptionist's Testimony
It's common at trial to have the so-called "battle of the experts," in which the prosecution's expert might claim that there were defensive wounds on the victim's body while the defense expert might claim that there were no such wounds. In United States v. Gayle, 2010 WL 5174536 (11th Cir. 2010), however, there was the much rarer "battle of the transcripts," with the key being that the defense transcriptionist was not an expert.
In Gayle, Ryan Gayle was convicted of importation of 1,000 kilograms or more of marijuana and conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana. Lloyd Garrick, a confidential informant for Immigration and Customs Enforcement was Gayle's alleged co-conspirator, with the subject conspiracy consisting of importing marijuana from Jamaica.
Garrick recorded many of his conversations with Gayle, and
Gayle objected to the introduction of transcripts of [the] audiotaped conversations between him and Garrick. Gayle and Garrick spoke English with the Jamaican patois, which differs from standard English in many ways, and Gayle argued that the government's transcripts were not an accurate translation or transcription of the conversations. Gayle produced his own set of transcripts, but suggested that the jury should listen to the tapes without the benefit of any transcripts. Because the parties had not been able to agree on a stipulated set of transcripts and the court found that the value of the transcripts outweighed the possibility of jury confusion, it denied Gayle's objection and ruled that each side could introduce its transcripts during its own case in chief.
During his case in chief,
Gayle introduced his transcripts through the paralegal transcriptionist who had prepared them. The transcriptionist described in detail the discrepancies between the two sets of transcripts, but the court restricted her from testifying as to the meaning of certain patois words or as to which of the transcripts was more correct.
After Gayle was convicted, he appealed, claiming, inter alia, that the district court improperly circumscribed the testimony of the paralegal transcriptionist. The Eleventh Circuit disagreed, holding that
opinions and inferences by a lay witness are limited to those (1) rationally based on the witness's perceptions; (2) helpful to a clear understanding of her testimony or a determination of a fact in issue; and (3) not based on scientific, technical, or other specialized knowledge that requires expert testimony. See Fed.R.Evid. 701. The correctness of a translation is a question of fact for the jury, and the district court does not abuse its discretion by requiring an alternate translation to be properly authenticated by an interpreter.