In United States v. Chavez, No. 17-8096 (10th Cir. Sept. 30, 2020), the panel majority tosses a conviction based on a violation of the Best Evidence Rule, Fed. R. Evid. 1002. Instead of playing audio recordings of surveillance tapes, the district court made the jury rely on translated paper transcripts. The panel holds that Rule 1002 required that the recordings themselves also be in evidence.
During two controlled buys of methamphetamines, an informant was outfitted “with a wire that would record audio and transmit it live to the agents.” The resulting recordings included Spanish and English. “At trial, the government’s case against Mr. Chavez rested in substantial part on three transcripts” of the recordings (Trial Exhibits 15, 16, and 17). “These transcripts purportedly reflect audio recordings of conversations that Mr. Chavez had in both Spanish and English in connection with the July 22 and August 3 controlled buys, except that the Spanish-language portions have been translated into English.” The transcripts were organized into rows that supposedly identified the individual speakers and provided the original Spanish and English translations.
The transcripts were problematic. Key recurring terms—“unintelligible” and “noisy”—went unexplained, and often appeared inconsistent. The transcripts were “devoid of information regarding … authorship,” contained “no information addressing who prepared [them], how much time elapsed between the statements …, what process [the] preparer used to create [them], or how and why the statements were broken up in the manner in which they were, among other missing contextual details.” There were apparent “discrepant accounts of what was said on the recording[s].”
The defendant objected to admission of the transcripts on Best Evidence Rule grounds, because the recordings themselves were not in evidence, but the judge found that the ”government had laid a sufficient foundation [for the transcripts] and that there was no dispute that the transcripts accurately represented the contents of the audio recordings.” It also held that “the jury is not free to reject the translation contained in the transcripts of the tape recordings given in this case and agreed to be as accurate translations.”
The Tenth Circuit reverses. To “promote accurate fact-finding” and deter fraud, the Best Evidence Rule requires that “evidence offered to prove the contents of an original writing, recording, or photograph is not admissible, unless the original itself is also admitted.” The rule is absolute, according to the panel majority, other than specific exceptions provided by Fed. R. Evid. 1003–07.
Because there is no foreign-language exception to Rule 1002, “the best-evidence rule does not permit courts to admit English-translation transcripts of foreign-language recordings when the recordings themselves are not also in evidence.” English-translation transcripts are allowed “only as aids in understanding the admitted recordings themselves (i.e., the primary evidence). In other words, under our practice, the English-translation transcript is permitted for use only in conjunction with the foreign-language audio recording: it is the recording itself—not the transcript of the recording—that constitutes the primary evidence.” The panel majority supports its analysis with an extensive, circuit-by-circuit analysis of the case law.
The panel majority holds that the district court abused its discretion in admitting the transcripts without the tapes. “Because the government sought to prove the contents of the three recordings concerning the alleged drug buys from Mr. Chavez, it was required under the best-evidence rule to secure admission of the ‘original’ recordings themselves; that is, the three audio recordings that the translation transcripts purported to reflect. This, the government did not do. At trial, it proffered instead the transcripts, and the transcripts only, as proof of the recordings’ contents.”
The panel majority also holds that the error was not harmless, because “(1) the transcripts assumed a central role in the government’s case, which is especially problematic because their defects and omissions make their integrity and soundness questionable, (2) the government’s other evidence was far from overwhelming, and (3) the district court’s jury instructions failed to mitigate the error and, indeed, probably exacerbated it.”
Dissenting, Judge Hartz would hold that the translator of the tapes ought to have been treated as an expert witness under Fed. R. Evid. 702, and original tapes as “facts or data” upon which an expert “in the particular field would reasonably rely” under Fed. R. Evid. 703. Thus conceived, the audiorecordings need not have been admitted for the transcripts to be admitted. This analysis, notes the dissent, comports with the “common sense” proposition that an English-speaking jury would rely on the translation itself, not the mixed English and Spanish-language recordings that they presumably would not understand.