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Tower Of Babel Or Court Of Confusion?: Federal Courts And Foreign Languages; Part I: Document Translation

By: Ira Cohen, Esquire, Partner, Henkel & Cohen, P.A., Miami
Republished from SideBAR, Spring 2017

“The translator, like the witness called to trial, should be compelled to raise his hand and swear to tell the truth and nothing but the truth.”   –Henry Wadsworth Longfellow1

Introduction

Tower of Babel or Court of Confusion? The stakeholders in the federal courts can fairly be characterized as a mosaic of diverse nationalities, ethnicities, and languages. Linguistic chaos, confusion, and/or incomprehension cannot be allowed to contaminate the courtroom environment or interfere with fact-finding, deliberations, or due process under the law. Accordingly, federal district courts gainfully utilize the services of language interpreters (or sign language interpreters) under applicable provisions of federal law in the context of proceedings wherein the parties or witnesses have communication difficulties relative to English.

United States courts and government agencies,2 not to mention state agencies (e.g., motor vehicle departments), routinely require certified translations of transcripts and other legal documents in order to validate the precision of translations.3 Moreover, as a general rule, any foreign-language source documents proffered to an American federal court as evidence must have a concomitant English-language translation. Notwithstanding the foregoing, there are no standards or uniform federal rule, or approved validation or certification process, relating to translation of foreign language source documents or to the qualifications or competence of translators.

For a variety of reasons, and on a number of levels, all of the participants in civil and criminal cases — parties, witnesses, experts, lawyers, judges and, if applicable, juries — of necessity, must have, and are entitled to, the benefit of accurately translated documents. Veteran litigators are cognizant, and rightly concerned, that all of the foreign-language source documents pertinent to the case must be: (a) identified, isolated, and secured; (b) properly translated; (c) fully comprehended; and (d) admitted into evidence by the court.

Despite these realities of the litigation trenches, the rules of engagement for achieving these admirable goals are as murky as the Potomac. Somewhere along the river of rules, the acts of oral interpretation and documentary translation drifted apart into two divergent branches; while the former stayed the course and made it to a sheltered procedural port, the latter seems to be hopelessly encircling a whirlpool in the same dark muddy waters.

In 1995, with the enactment of the Court Interpreters Act (“CTIA”),4 Congress mandated, inter alia, the use of certified and otherwise qualified interpreters in the context of judicial proceedings. In that vein, Rule 604 of the Federal Rules of Evidence provides, in toto, as follows:

“Interpreter. An interpreter must be qualified and must give an oath or affirmation to make a true translation.”

Surprisingly, and lamentably, however, the CTIA fails to extend to documentary translations for foreign language documents or to translators thereof. Moreover, albeit some states5 have promulgated well-considered rules regarding foreign document translations, the Federal Rules of Evidence remain inexplicably mute on this paramount language issue.

Historical Setting

The etymology of the noun “translation” - meaning to turn one language to another - is readily discernible. Dating back to around the early 14th century, it stems from the Old French Anglo-Norman translacion (the rendering of a text from one language to another) and, of course, the Latin translatio (translation) and liber translatus (a work translated).6

In biblical legend, “the whole world had one language and a common speech.”7 Incurring the Lord’s wrath for being too enterprising and arrogant enough to attempt to construct an edifice to heaven itself, the legendary Tower of Babel remained an unfinished work, sinking ingloriously into the sands of antiquity. Meanwhile, the perplexed, hitherto mono-linguistic people of Babylonia, who could no longer understand each other, were promptly “scattered over the face of the whole earth.”8 Philological scholars have noted that the name “Babel,” the Jewish term for Babylon, also was similar to the transliterated Hebrew verb, balal, which means “to mix, mingle, or confuse.”9

The history of documentary translation is a long and honored one. The ancient Greeks in Alexandria translated earlier Hebrew scriptures (the Bible and some related texts) into a monumental translation work known as the “Septuagint” between 300-200 B.C.E.10 Subsequently, around 384 A.D. Saint Jerome — often referred to as the Patron Saint of Translators — translated what later became known during the 16th century as the standard Latin “Vulgate” Bible.

The Arabs and Muslims, having conquered the Greeks, deciphered many works from the original Koine Greek texts. Additionally, Greek works enthusiastically were rendered into Latin during the reigns of the various Roman conquerors.

During the Middle Ages, of course, Latin was the lingua franca of the scholarly class in the Western World. In 13th century Spain, for example, King Alphonse the Wise founded a translation school in Toledo (to wit, The “Schola Traductorum”),11 where Hebrew, Arabic, and Latin texts were decoded into still other world languages. In 14th century England, Geoffrey Chaucer12 adapted the Italian author Giovanni Boccaccio’s works into the former’s celebrated works, “The Knight’s Tale” and “Troilus and Criseyde”.

The Spanish literary giant, Cervantes, writing in the nascent years of the 17th century,13 ostensibly did not hold a very high opinion of translators or their art:

“‘I would venture to swear,’ said Don Quixote, ‘that your worship is not known in the world, which always begrudges their reward to rare wits and praiseworthy labours. What talents lie wasted there! What genius thrust away into corners! What worth left neglected! Still it seems to me that translation from one language into another, if it be not from the queens of languages, the Greek and the Latin, is like looking at Flemish tapestries on the wrong side; for though the figures are visible, they are full of threads that make them indistinct, and they do not show with the smoothness and brightness of the right side; and translation from easy languages argues neither ingenuity nor command of words, any more than transcribing or copying out one document from another. But I do not mean by this to draw the inference that no credit is to be allowed for the work of translating, for a man may employ himself in ways worse and less profitable to himself.’” Miguel de Cervantes Saavedra14

Indeed, it would appear that, depending upon the century, the practice and vogue in translating vastly differed. To illustrate, in 17th century Europe, there seems to have been more concern for artistic and stylistic issues as opposed to verbal accuracy. Later, in the 18th century, the translators’ mantra changed to ease of popular reading, while the 19th century saw more emphasis placed upon technical precision. It was not until well into the 20th century that faithful accuracy was elevated to its well-deserved lofty pedestal.

Modern English translations of old or original language texts certainly will serve to help a reader better digest and comprehend legal masterpieces such as Cicero’s De Legibus,15 Justinian’s Codex Justinianus,16 or the Code Napoléon.17 However, for courtroom purposes nowadays, translations most assuredly are judged by a decidedly higher standard, if not as to artistic effect and style, then as to unswerving fidelity and technical exactitude vis-a-vis the foreign source document.

Using Foreign Language Documents in Court, Generally

As a rule of thumb, for legal and official purposes, evidentiary documents and other official documentation normally are mandated to be in the official language(s) of a particular jurisdiction. Nevertheless, the procedure for translating for so-called legal equivalence differs from nation to nation.

In some countries, for example, it is a requirement that a translator swear an oath to attest that it is the legal equivalent of the source text. Often, only translators of a special class are authorized to swear such oaths. In some cases, the translation is only accepted as a legal equivalent if it is accompanied by the original or a sworn or certified copy of it. Even if a translator specializes in legal translation, or is a lawyer in his (her) country, this does not necessarily make him (her) a sworn translator. In a number of countries, mere “declared competence” by a translator will pass muster. Yet, other nations require a translator to be officially appointed by the government.

Sworn translation, then, also sometimes referred to as a "certified translation," shoots for legal equivalence between two (2) documents, the original of which is penned in a different source language. Such a translation should be performed by someone authorized so to do by applicable statutes, court rules, or agency regulations.

Foreign Languages in the U.S. Federal Courts, Generally

According to the U.S. Department of Labor, Bureau of Labor Statistics, "[t]here is currently no universal form of certification required of interpreters and translators in the United States, but there are a variety of different tests that workers can take to demonstrate proficiency."18 To be sure, court interpreters are highly-skilled professionals in both simultaneous and consecutive reporting tasks; the lawyers, judges, and other players in the American justice system heavily depend upon the interpreters to keep the gears of the machinery of justice in perpetual, if glacial, motion. Translators of documents also are pressed into service in order to provide a vital function.

Well over a hundred diverse tongues require language interpretation in federal court proceedings in any given year. Needless to say, the lion’s share of the cases involve Spanish speakers. Other languages involved with some measure of frequency include, but are not limited to, Mandarin and Cantonese Chinese, Vietnamese, Arabic, Korean, Russian, Portuguese, and Haitian Creole.

Examining the lineage of our federal court precedents, it becomes crystal clear that all federal court proceedings must be conducted in the English language. The cases so holding are legion. Moreover, any witness who does not speak English well enough to understand the proceedings must be afforded the benefit of an interpreter.

Foreign Language Documents in U.S. Federal Courts

If we accept the principle that all U.S. federal court proceedings must be held in English (including in the District of Puerto Rico, where 95% of the population speaks Spanish),19 then, a fortiori, any documents sought to be entered into evidence during the course of such proceedings must likewise be in English. “[I]t is clear, to the point of perfect transparency, that federal court proceedings must be conducted in English.” United States v. Rivers-Rosario.20 In that case, the court also noted the “well-settled rule that parties are required to translate all foreign language documents into English.”21

Appellate tribunals likewise have made it clear that the erroneous admission of foreign-language documents violates the so-called English Language Requirement. See, e.g., United States v. Diaz (where untranslated foreign passports and travel documents were erroneously admitted).22 See also United States v. Contreras Palacios23 (wherein it was held to be error that both a birth certificate and cedula [identity card] in the Spanish language were offered by the government into evidence unaccompanied by translations into English.)

The results of failing to have such translations properly admitted into evidence can be disastrous for both litigator and client alike. See, e.g., Krasnopivtsev v. Ashcroft24 wherein a copy of a passport was held to have been properly excluded from evidence where no English translation or certification was offered. See also Lopez-Carrasquillo v. Rubianes25 wherein the court declined to consider a deposition excerpt as part of the record on summary judgment because the party proffering same had failed to submit an English translation; United States v. Cruz,26 in which case the Eleventh Circuit Court of Appeals, confronted with a situation where the defendant had engaged in a “deliberate tactical decision” not to submit an English translation of a Spanish-language tape, held that he could not complain on appeal that the jury’s function was usurped when he had failed to present evidence that would have aided the jury in fulfilling that function); and Heary Bros. Lightning Protection Co., Inc. v. Lightning Protection Institute et al,27 where the court, sua sponte, struck plaintiff’s exhibits as inadmissible, on the ground that the exhibits were not in English and that no translations had been provided with respect thereto.

Another stark illustration of the potentially devastating effect of an epic translation failure is provided by the Villalobos case.28 A few years back, the U.S. Court of Appeals for the Eleventh Circuit refused to reverse an immigration ALJ who had ordered a deportation largely for lack of evidence because, as the BIA noted, the petitioner had only provided an unsigned statement, unaccompanied by a certificate of translation, and had failed to address the claim raised in her motion.

A review of the relevant authorities further reflects that a producing party, in a vacuum, has no duty to translate documents regularly kept in a foreign language. See, e.g., In re P.R. Elec. Power Authority.29 However, in order to utilize such documents and have them admitted into evidence, they will have to be translated and exchanged during the discovery process.

The question next arises as to which party should be obliged to shoulder the burden of the costs of translating documents in discovery. It is well-settled that each party seeking discovery is expected to bear any special attendant costs, which costs encompass the cost of translating foreign language documents received in response to document requests. Thus, an objective study of the case law under Rule 34 (document production) reveals that the requesting party ordinarily must bear the burden.30 However, when a party responds to an interrogatory by producing documents written in a foreign language, Rule 33(d) requires that the responding party provide a translation of those documents.

The cost of translating foreign language documents is by no means de minimis. In the Miami, Florida area, for example, the market rate for a Spanish-English translation appears to be 25 cents per word. Extrapolate that cost, for example, to a 12 page document (approximately 4,000 words); the cost would be $1,000.00 (U.S.D.).

Under Title 28, U.S. Code Section 1920, it is commonplace that the compensation to “interpreters” is among the costs that may be awarded to prevailing parties. What about taxing the expense of document translation as costs for purposes of awards to prevailing parties in federal actions?

The issue thus presented to the United States Supreme Court was whether costs incurred in translating documents were “compensation of interpreters” under 28 U.S.C. Section 1920(6)? The high court’s answer was in the negative.

Notably, however, as opined by Justice Ginsberg, in the context of her dissenting opinion in Taniguchi v. Kan Pacific Saipan, Ltd., d/b/a Marianas Resort and Spa,31 over many years of practice, a number of district courts have awarded costs for document translations on a variety of grounds or theories. Faced with this thorny issue, some courts have held that costs may be awarded under §1920 subdivisions (4) or (6) for the translation of documents necessary to, or in preparation for, litigation.32 Savvy practitioners would be well-advised to check yet another option; because, alternatively, as Justice Ginsberg also pointed out, some district courts allow fees for foreign document translation by way of their respective local rules.33

As a matter of black letter law, the majority of the U.S. Supreme Court in the Taniguchi case, by a vote of 6-3, reversed the Ninth Circuit Court of Appeals and slammed shut the Section 1920 statutory door on recouping the costs of document translation. Justice Alito, writing for the court, expressly held that the “compensation of interpreters” in Section 1920(6) does not include the costs of document translation.

While there is no federal law or local rule pertaining to the qualifications for a translator of written documents, it ought to be noted that some courts or their Clerk’s Offices do have filing requirements to the effect that “[d]ocuments not written in English must be accompanied by a translation unless a waiver has been granted by the court.”34 Translators of foreign documents need to possess excellent linguistic skills in both the original source language and the target language. In addition, the translator must be aware of, and adjust for, colloquialisms, dialects, idioms, regional differences, slang and, last but not least, legal terminology. Nevertheless, there are no accepted or uniform certifications, examinations, interviews, licenses, tests, or validations for document translators that we can point to.

What, then, does a “certification” mean in relation to a document translator? One thing is certain; it does not mean “federal court certified translator,” inasmuch as there is no such appellation extant. One approach that a seasoned litigator may adopt is to only utilize the services of an ATA-certified translator, although there is no strict requirement therefor imposed by the federal rules or courts so to do. The ATA is the American Translators Association. Many folks in the legal translation industry have considered this as a smart, or best, practice for the last half century or so. In the author’s view, teaming up with a translator that is ATA-certified can serve to ensure that the translations not only will be accurate but, equally important, will be admissible in evidence and accepted by the court.

As and for other, pertinent best practices during litigation, it is strongly recommended that the litigator introduce both the source foreign language documents and the translated versions as exhibits at both deposition and at trial. In addition, under ordinary circumstances, it would seem eminently prudent to secure an affidavit or declaration attesting to the translator’s qualifications and certifying that the English translation is both true and accurate.

Conclusion

There is a saying in the Southwest region of our great nation… “[e]verything’s bigger in Texas.” Certainly, the Code of Evidence down there is King-Sized; they even have one more rule in Article X than does the Federal Rules of Evidence. That extra heaping helping of jurisprudence serves to satisfy even the most discerning legal tastes and evidentiary palettes.

Thus, as to the field of foreign document translations, Texas legislators appear to have bolted from the starting gate, leaving the feds lagging far behind in the statutory dust. As previously mentioned, Rule 1009 of the Texas Rules of Evidence35 expressly deals with the topic of “Translation of Foreign Language Documents,” providing, in pertinent part, as follows:

“…translation of foreign language documents shall be admissible upon the affidavit of a qualified translator setting forth the qualifications of the translator and certifying that the translation is fair and accurate.”

It readily must be observed that the Texas rule comprehensively covers the subject-matter, treating translations, objections thereto, effect of failure to object or offer conflicting translation, effect of objections and of conflicting translations, expert testimony of translators, and court appointments. In so doing, it must be viewed as markedly superior when compared to the Federal Rules of Evidence which, as noted above, are rather conspicuous in their silence on this significant subject.

Beyond peradventure of doubt, the Texas rule regarding translations has much to commend it. That is to say; Texas jurisprudence does not attempt to skirt around or shy away from the issue; rather, it’s fixin’ to bring down and rope this bull of a problem head-on. Or, as a Texas jurist might say, “don’t mess with Texas; this ain’t our first procedural rodeo.”

Endnotes

1Longfellow, the celebrated American poet, was a professor of Italian at Harvard University. In 1867, he completed his renowned translation of Dante Alighieri’s Divine Comedy. culturesconnection.com/20-quotes-about-translation/, retrieved February 24, 2017.

2For example, the U.S. State Department and the USCIS require that “[a]ny document containing foreign language submitted to the Service shall be accompanied by a full English language translation which the translator has certified as complete and accurate, and by the translator’s certification that he or she is competent to translate from the foreign language into English.”

3Another example is provided by the Rules for the Federal Trade Commission. Under Title 16 C.F.R. Section 803.8, documentary materials in a foreign language are “required to be submitted …with verbatim English language translations or all existing English language versions, or both…” See also C.F.R. Title 21, Part 10, Section 10.20 (c) (2), which regulation requires submission of verified English translations of foreign documents.

4Title 28, U.S. Code Section 1827.

5See, e.g., Texas Rule of Evidence 1009.

6Cassell’s New Latin Dictionary 857 (1968 ed.).

7Genesis, 11:1.

8Id., at 11:9.

9The NAS Old Testament Hebrew Lexicon, www.biblestudytools.com, retrieved on February 24, 2017.

10The Septuagint (sometimes referred to as “LXX”) was named in Latin for the 70 scholars commissioned by Ptolemy Philadelphus to perform the translation tasks. www.septuagint. net, retrieved on February 24, 2017.

11Alfonso X (Alphonso El Sabio)(1221-1284). During his reign, Alphonso retained Christian, Jewish, and Muslim scholars at court for his royal scriptorium, where books were translated from the Arabic and Hebrew into Latin and Castilian (Spanish).

12Geoffrey Chaucer (1343-1400), known as the Father of English Literature, also translated Roman de la Rose and Boethius' Consolation of Philosophy.

13Don Quixote (the full title was “The History of the Valorous and Wittie Knight-Errant Don-Quixote of the Mancha”) was first published in 1605.

14Miguel de Cervantes Saavedra, Don Quixote, Second Part, Chapter LXII. Ironically, Don Quixote would go on to become the most translated book in the world, second only to the Bible, having been translated into over 50 languages.

15“On the Laws.” Marcus Tullius Cicero (106-43 B.C.) was an ancient Roman statesman, philosopher and, by all accounts, a brilliant lawyer.

16Justinian I, a/k/a Justinian the Great, Eastern Roman Emperor (527 – 565 A.D.) The Corpus Juris Civilius (Body of Civil Law) was issued from 529-534.

17The Napoleonic Code, a/k/a Code Civil des Français, entered into force on March 21, 1804, and was drawn up by four eminent jurists; interestingly, it was not derived from earlier French laws, but rather from Justinian’s Code (see discussion and note xvi, above).

18Archived October 11, 2007, in the Wayback Machine.

19See Title 48, U.S. Code, Section 864. “The laws of the United States relating to appeals, certiorari, removal of causes, and other matters or proceedings as between the courts of the United States and the courts of the several States shall govern in such matters and proceedings as between the United States District Court for the District of Puerto Rico and the courts of Puerto Rico. All pleadings and proceedings in the United States District Court for the District of Puerto Rico shall be conducted in the English language.”

20300 F.3d 1, 5 (1st Cir. 2002).

21Id., 300 F. 3d, at 7, n. 4. But see Torres Santa et al v. Rey Hernandez et al, 279 F. Supp. 2d 124 (D. P.R. 2003)(wherein Judge Perez-Gimenez opines as to the problems with the First Circuit’s Rivera-Rosario decision and admits Spanish language documents).

22519 F. 3d 56 (1st Cir. 2008). (Error deemed not plain error and not fatal to Defendant’s conviction because evidence was submitted for limited purpose and defendant failed to object at trial).

23492 F. 3d 39, 43 n. 7 (1st Cir. 2007). (Even though an interpreter had orally translated the two documents for the District Court, it was nevertheless held to be error.)

24382 F.3d 832, 838 (8th Cir. 2004).

25230 F.3d 409, 413-14 (1st Cir. 2000).

26765 F.2d 1020, 1023 (11th Cir. 1985).

27287 F. Supp. 2d 1038, 1074 (D. Ariz. 2003).

28Maria Villalobos v. U.S. Attorney General, Case No. 11-12758, June 17, 2011 (11th Cir. 2012).

29687 F.2d 501 (1st Cir. 1982).

30See Sungjin Fo-Ma, Inc. v. Chainworks, Inc., Civil Action No. 08-CV-12393, 2009 WL 2022308, at *4-5 (E.D. Mich. July 8, 2009). See also In re Puerto Rico Elec. Power Auth., 687 F.2d 501, 506 (1st Cir. 1982).

31566 U.S. 560, 132 S. Ct. 1997, 182 L. Ed. 2d 903 (2012).

32“Most federal courts of appeals confronted with the question have held that costs may be awarded under §1920(6) for the translation of documents necessary to, or in preparation for, litigation. Compare 633 F. 3d 1218, 1220–1222 (9th Cir. 2011); BDT Prods., Inc. v. Lexmark Int’l, Inc., 405 F.3d 415, 419 (6th Cir. 2005); Slagenweit v. Slagenweit, 63 F.3d 719, 721 (8th Cir. 1995) (per curiam); and Chore-Time Equip., Inc. v. Cumberland Corp., 713 F.2d 774, 782 (CAFC, 1983) (all holding that costs for document translation are covered by §1920(6)), with Extra Equipamentos E Exportação Ltda. v. Case Corp., 541 F.3d 719, 727–728 (7th Cir. 2008) (costs for document translation are not covered by §1920(6)). See also In re Puerto Rico Elec. Power Auth., 687 F.2d 501, 506, 510 (1st Cir. 1982) (recognizing that costs of document translation may be reimbursed, without specifying the relevant subsection of §1920); Studiengesellschaft Kohle mbH v. Eastman Kodak Co., 713 F.2d 128, 133 (5th Cir. 1983) (allowing document translation costs under §1920(4)); Quy v. Air Am., Inc., 667 F.2d 1059, 1065 (CADC 1981) (allowing “translation costs” under §1920(6)).” Slip Opinion, Taniguchi, supra, Dissenting Op., at pp. 2-3.

33“Currently, some federal district courts make the practice of allowing fees for translation of documents explicit in their local rules. See Rule 54–4.8 (CD Cal. 2012) (allowing “[f]ees for translation of documents... reasonably necessary to the preparation of the case”); Rule 54.1 (Guam 2011) (same); Rule 54.1(c) (7) (Idaho 2011) (allowing reasonable fee if the “document translated is necessarily filed or admitted in evidence”); Rule 54.7 (MD Pa. 2011) (same); Rule 54.1 (Ariz. 2012) (same); Rule 54.1(b)(4)(e) (SD Cal. 2012) (same); Rule 54.1 (NJ 2011) (same); Rule 54–5(d) (Nev. 2011) (same); Rule 54.2 (NM 2012) (allowing translator’s fee if the translated document is admitted into evidence); Rule 54.1(c)(4) (SDNY 2012) (allowing reasonable fee if translated document “is used or received in evidence”); Rule 54.1(c)(4) (EDNY 2012) (same). See also Rule 54.03(F)(1) (c) (SC 2012) (allowing costs of certain document translations under §1920(4)); Rule 54.1(b)(5) (Del. 2011) (same); Rule 54(c) (3)(i) (Conn. 2011) (same); Misc. Order ¶7, Allowable Items for Taxation of Costs (ND Fla. 2007) (allowing “fee of a competent translator of a non-English document that is filed or admitted into evidence”); Taxation of Costs Guidelines (PR 2009) (allowing fees for translation of documents filed or admitted into evidence), available at www.prd.uscourts.gov/courtweb/pdf/taxation_of_costs_guidelines_2007_with_time_computation_ amendments.pdf (All Internet materials as visited May 17, 2012, and included in Clerk of Court’s case file); Taxation of Costs (Mass. 2000) (allowing fees “for translation of documents... reasonably necessary for trial preparation”), available at www. mad.uscourts.gov/resources/pdf/taxation.pdf.” Slip Opinion, Taniguchi, supra, Dissenting Op., at p. 4, n. 2.

34U.S. D.C., S.D. Fla., Section 2N, Civil Filing Requirements.

35Effective March 1, 2013.

 

About Henkel & Cohen

Henkel & Cohen, P.A. is a Miami, Florida boutique business litigation law firm whose partners hold the highest AV rating from Martindale-Hubbell®. For additional biographical and contact information, please visit the firm's website at www.miamibusinesslitigators.com.