Supreme Judicial Court, May 27, 2012

The prosecution must offer a transcript for any recorded statements given in a language other than English.

After his arrest for a narcotics violation the defendant gave a statement in Spanish, while in the presence of two Spanish-speaking officers.  The Commonwealth provided a copy of the recorded statement to defense counsel but never provided either a Spanish-language transcript of the interrogation or a transcript with an English-language translation.  The Commonwealth intended to offer the recording to show its voluntariness and to have the officers refresh their memory and testify to the statements made by the defendant, translating the Spanish to English.

At a motion to suppress, the judge allowed the defendant’s motion to exclude the audio recording and the officers’ testimony regarding the statements made by the defendant during the interrogation.  The Commonwealth filed an application for leave to file an interlocutory appeal, which was entered in the Appeals Court and then transferred to the Supreme Judicial Court on its own motion.

The Court affirmed the lower court’s decision holding that “[w]here another language is spoken in a recorded statement, the prosecutor may not offer the recorded statement in evidence without an English-language transcript, and may not rely on the jury's understanding of the foreign language to ascertain the meaning of the recorded words.”  The Court adopted the procedure followed in the United States Court of Appeals for the First Circuit as articulated below:

We believe that it is advisable for the . . . court to try to obtain a stipulated transcript from the parties before trial or, at least, before a transcript is used. Failing such stipulation, each party should be allowed to introduce its own transcript of the recording provided that it is properly authenticated. When the jury receives two transcripts of the same recording, it should, of course, be instructed that there is a difference of opinion as to the accuracy of the transcripts and that it is up to them to decide which, if any, version to accept. The jurors should also be instructed that they can disregard any portion of the transcript (or transcripts) which they think differs from what they hear on the tape recording. Further limiting instructions will depend on the circumstances of each case.  United States v. Rengifo, 789 F.2d 975, 983 (1st Cir. 1986).

The Court then remanded the case to the District Court to give the Commonwealth the “opportunity to decide whether promptly to prepare and provide a translated transcript, now that it knows from this opinion that the defendant's statements may not be admitted in evidence unless it does so.”