Translation: Not necessarily word for word to be admitted as evidence

Introduction

In the case of United States v Khan [2015 U.S. App. LEXIS 12724], the Court of Appeals affirmed the conviction of Khan on terrorism related charges. In 2011, a grand jury had convicted Khan and sentenced him to twenty five years in prison. He was charged with using his madrassa (or school) in Pakistan as a front to send funds to incarcerated and injured Taliban fighters. One of the critical parts of the challenge in the Court of Appeals that was brought by the defense was that the district court erred in allowing the government translator to add comments to the transcript of phone calls between the accused and his associates in Pakistan. The Court of Appeals rejected the challenge and held that the translator had done his work with sufficient methodology and that the district court had not overstepped its discretion in allowing the testimony to be admitted.

Background

The accused in this case is one Hafiz Khan who was the founder of a school (also called madrassa) in his native village. This school was financed by donations and by Khan’s own personal contributions. When Khan relocated to the United States, he did not sever ties with his school but continued to fund it and oversee its operations. Over time, it became a financial conduit for Khan to send monetary aid to the families of Taliban fighter who were killed or incarcerated. The United States government monitored his communications for a period of time till sufficient evidence of his involvement in terrorist activities was documented. The main evidence on which the prosecution case rested was the transcript of telephone conversations that Khan had with his contacts in Pakistan. The government translator had put explanatory comments in brackets which were put in to explain context to non-native speakers of the language. The defense for Khan, among other grounds, claimed that the district court had overstepped its authority in allowing bracketed words in the translation which were not strictly part of the original conversation to be admitted as evidence.

Discussion

The defense had argued that the allowing of bracketed words consisted of an invasion into the province of the jury because it involved giving meanings to words which the speaker had not intended. The District Court rejected this argument but asked the government to produce the translator as an expert witness and requested him to explain the process by which he had arrived at the each of the bracketed words.

The translator, Shah, explained that there are difficulties in a literal word-to-word translation because sometimes there is no direct substitute for one language in another. In such cases, the Court agreed that the work of the translator is much more complex than word for word translation. It becomes an exercise in conveying the message of the original text in another language. Reference was made in this relation to Towne v. Eisner [245 U.S. 418, 425, 38S. Ct. 158, 159, 62 L. Ed. 372, T.D. 2634, 15 Ohio L. Rep. 562 (1918)]. In this case the Court found that Shah had faithfully done what he had been tasked to do and only included words in brackets if he was sure of their meanings. In many cases, where the context was unclear, he had left a blank space. The Court opined that if the defense felt that words were lost in translation because of the lack of expertise of Shah, they could have challenged the expert testimony under Rule 702 which they had failed to do. Thus the Court held that the District Court had not erred when it admitted the testimony of Shah.