Translated Transcripts From Covert Recordings Used for Evidence in Court: Issues of Reliability

Abstract

Nation states increasingly apply electronic surveillance techniques to combat serious and organised crime after broadening and deepening their national security agendas. Covertly obtained recordings from telephone interception and listening devices of conversations related to suspected criminal activity in Languages Other Than English (LOTE) frequently contain jargon and/or code words. Community translators and interpreters are routinely called upon to transcribe intercepted conversations into English for evidentiary purposes. This paper examines the language capabilities of community translators and interpreters undertaking this work for law enforcement agencies in the Australian state of Victoria. Using data collected during the observation of public court trials, this paper presents a detailed analysis of Vietnamese-to-English translated transcripts submitted as evidence by the Prosecution in drug-related criminal cases. The data analysis reveals that translated transcripts presented for use as evidence in drug-related trials contain frequent and significant errors. However, these discrepancies are difficult to detect in the complex environment of a court trial without the expert skills of an independent discourse analyst fluent in both languages involved. As a result, trials tend to proceed without the reliability of the translated transcript being adequately tested.

Transcribing and translating forensic speech evidence containing foreign languages—An Australian perspective

“…The starting point of the judiciary is often that all transcripts provided by the prosecution (whether in English or translation into English from a foreign language) are accurate and fit for purpose for trials (Gilbert, 2014), and from there the defense can attempt to create uncertainty in trials about the meaning alleged by the prosecution (González et al, 2012). Although, as mentioned before, the primary evidence is the audio and the transcript is secondary (Gilbert and Heydon, 2021), in reality, audio recordings are not necessarily played in court trials for practical reasons: if the audio is in English, reading the transcript is easier for the triers of fact to visualize the words, as opposed to listening to ephemeral sounds in the recording; and if the audio is in a foreign language, there is even less incentive to play it, since triers of fact will have to rely on the translation anyway. Either way, jurors rely heavily on the transcript, unless there is a particular point the prosecution or the defense attempt to make about the recording, in which case the audio may be played.…”

“…For investigative purposes, professional interpreters may be employed to listen to live or covertly recorded telephonic communications and asked to provide investigators with either the gist or a full interpretation of the exchanges under surveillance; they may also be asked to identify matters of interest or scour for specific items of information instructed by the investigator. For evidentiary purposes, although the actual recording is regarded as the primary evidence and the transcript as secondary (Gilbert and Heydon, 2021), triers of fact (i.e., judges and jurors) must rely on the translation into English of the original utterances in the audio to access the meaning of the exchanges spoken in a foreign language that they do not understand.…”

“…Unreliable transcripts, therefore, give "extraordinary privilege for the police interpretation of indistinct covert recordings" (Fraser and Loakes, 2020;p. 418) and increase the risk of innocent people being convicted and the guilty set free (Gilbert and Heydon, 2021).…”

A Framework for Deciding How to Create and Evaluate Transcripts for Forensic and Other Purposes

“…Unfortunately both of these tasks are carried out according to procedures developed with poor understanding of relevant aspects of linguistic science (Fraser, 2021b). Even more unfortunately, valuable efforts of experts to document the resulting problems (Capus and Griebel, 2021;Gilbert and Heydon, 2021) and suggest viable solutions (Gonzáles et al, 2012;NAJIT, 2019) are so far having limited impact on general practice.…”

Translation in Libel Cases: Reputations at Stake!

“…The first point to be made is that to the authors' knowledge, there is no international legal authority defining a profile for expert witnesses with expertise in translation. Indeed researchers analysing data collected during the observation of public court trials in the Australian state of Victoria have brought to light the fact that: "[p]olice officers often provide expert witness testimony to explain the meanings of terms and phrases contained in translated transcripts", and more worryingly still, "[e]xpert witness testimony in these circumstances is often delivered by monolingual police officers" (Gilbert and Heydon 2021). A study of 150 judgments of the High Courts of Justice of Spain by Guillén Nieto (2020), concluded that in none of the cases analysed were the services of an expert linguist called upon by the court.…”