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.
Clifford S. Fishman, Recordings, Transcripts and Translations as Evidence, 81 WASH. L. REV. 473 (2006).