Academic journal article Washington Law Review

Recordings, Transcripts, and Translations as Evidence

Academic journal article Washington Law Review

Recordings, Transcripts, and Translations as Evidence

Article excerpt

Abstract: Secretly recorded conversations often play a vital role in criminal trials. However, circumstances such as background noise, accidents, regional or national idioms, jargon, or code may make it difficult for a jury to hear or understand what was said-even if all participants were speaking English. Thus, a recording's value as evidence will often depend on whether an accurate transcript may be distributed to the jury. This Article discusses several legal issues, including: Who should prepare a transcript? What should it contain? How should its accuracy be determined, and by whom? Should the transcript be considered evidence, or only an "aid to understanding" the recording? Should expert testimony be admitted to interpret jargon and codes?

When the conversation was in another language, additional issues arise: Who should translate the conversation into English? What methodology should the translator use? How should a court determine the accuracy of the translation? How should the conversation be presented to the jury? How can the adverse party challenge the accuracy of the translation before and during the trial?

By blending existing case law, general evidentiary principles, common sense and his own experience as a prosecutor, the author offers answers to each of these questions.


Surreptitiously recorded conversations have long played a prominent role in American trials.1 Few, if any, forms of evidence are likely to be as probative-or as devastating. We see this most often in criminal cases: rather than rely on the testimony of witnesses who may be vulnerable to various forms of impeachment, a prosecutor simply allows a defendant's words to speak for themselves.2 It is quite difficult for a defense attorney to "impeach" a recording of criminals planning or reminiscing about their crimes. The impact of such evidence can be equally dramatic in civil litigation.3

Assuming the conversation was recorded lawfully,4 the use of the recording as evidence poses no significant issues if the participants are clearly identified and the recording is plainly audible and intelligible to judge and jury.5 Often, however, these ideal conditions do not exist. As a practical matter, therefore, the evidentiary value of a recorded conversation will often depend on whether the offering party can give the jury a transcript.

A variety of circumstances may render the recording difficult or impossible to understand on an initial listening. Identity may be a contested issue. Background noise may make it difficult to hear what was said. Several people may be speaking simultaneously. One or more participants in the conversation may speak with a pronounced accent. The conversants' use of slang, jargon, or code may increase the difficulties in making out what was said, let alone what the conversants meant.

The challenges surrounding recorded conversations are further compounded when some or all of the conversants speak in a language other than English. In that case, even if the recording is free of all of the problems just discussed, it has no evidentiary value unless an English translation is provided to the jury. It is perhaps a common attitude that translating a conversation from one language to another is a fairly mechanical process: pour the foreign language into a human "machine" called the "interpreter" or the "translator," and out comes the equivalent in English. In reality, the process is far more subjective than objective, and much more an art than a science, let alone a mechanical process.6

Part I of this Article examines the issues that arise when the party offering a recording in evidence also seeks to have a transcript of that recording distributed to the jury. I argue that the traditional view-that the transcript is not evidence but merely an "aid" to the jury to help it "understand" the recording7-is unrealistic and fails to recognize or adequately address the challenges of presenting a recording as evidence. …

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