¿Hablas Español?: Supreme Court Of Indiana Finds No Problem With Admission Of Translation Under Best Evidence Rule

Like its federal counterpart, Indiana Rule of Evidence 1002, its Best Evidence Rule, provides in relevant part that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute. 

So, let's say that a confidential informant surreptitiously records Spanish-language drug deals between the defendant and himself. Can the prosecution admit English language translations of these recordings without introducing the original recordings at trial? According to the recent opinion of the Supreme Court of Indiana in Romo v. State, 2011 WL 446285 (Ind. 2011), the answer is "yes"...sort of.

In Romo, the facts were as stated above. Before trial, the prosecution provided the defendant with the original recordings and the English language translations to the defendant. At trial, however, the prosecution only admitted the English language translations.

After he was convicted, the defendant appealed, claiming, inter alia, that the prosecution was required to introduce the original recordings pursuant to Indiana Rule of Evidence 1002. In addressing this argument, the Supreme Court of Indiana noted that in three prior opinions it had viewed "the function of transcripts of recordings purely as an aid to assist a jury's understanding of the actual recording, and Evidence Rule 1002 requires the original of a recording, if available, to be submitted in evidence as proof of the contents of the recording." That said, the court then noted that in two of these prior opinions left

open the possibility of a more robust role for transcripts where the recording is inaudible or indistinct. For juries without appropriate foreign language comprehension, audio recordings of foreign language speakers may fall into this category and require special consideration.

The Indiana Supremes then pointed out that the Fifth, Seventh, and Eighth Circuit had each reached this conclusion and agreed with them, finding that

Here, under the reasonable assumption that the jury did not comprehend Spanish, the original recording, being solely in Spanish, would not likely convey to the jury the content of the recorded conversations. 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....We hold that English language translation transcripts of statements recorded in a foreign language, if otherwise admissible, may properly be considered as substantive evidence.

That said, the court did

determine that it is generally the better practice to play such foreign language recordings to the jury upon a reasonable request by a party. Expediency undoubtedly results when a jury is spared from listening to foreign-language recordings, and practical usefulness is served by providing them instead with reliable English translations or translation transcripts. But we value even higher the capacity of jurors to apply their sensing and intuition faculties in reaching their determinations.

-CM