Lost in Translation: The Best Evidence Rule and Foreign-Language Recordings in Federal Court

The federal court system and the Federal Rules of Evidence are designed around the English language. As the United States becomes increasingly diverse and multicultural, however, a growing number of Americans speak a primary language other than English. The federal courts and the Federal Rules of Evidence must accommodate parties, witnesses, and evidence presented in a foreign language, notwithstanding their English-only orientation. Federal Rule of Evidence 1002, known more colloquially as the Best Evidence Rule, assumes that evidence will come in only one, English flavor, however. The Best Evidence Rule is powerful and straightforward, ensuring that jurors have access to original writings and recordings in order to evaluate their meaning accurately. When applied to English-language writings and recordings to require that juries examine originals, the Best Evidence Rule improves accuracy. But when rigidly applied by federal courts to require English-speaking jurors to evaluate foreign-language recordings for themselves, the rule and its rationale break down. If the plain language of the Best Evidence Rule mandates such a result, as one federal circuit court recently held, the Federal Rules of Evidence should be amended to remove foreign -language recordings from its orbit, lest accuracy suffer and the import of foreign-language recordings get lost in translation. This Article offers concrete amendment alternatives that would exempt foreign-language writings and recordings from the Best Evidence Rule and pave the way for the efficient and meaningful consideration of foreign-language content by American juries. But this Article also charts a novel and detailed course through the existing Federal Rules of Evidence allowing for the admissibility of English transcripts of foreign-language recordings outside the Best Evidence Rule. Should federal courts unite around this common-sense interpretation of the Best Evidence Rule that allows for the fair and effective presentation of ubiquitous foreign-language evidence, costly amendments to the Federal Rules of Evidence can be avoided. If the federal courts do not interpret the existing Federal Rules of Evidence in a manner that offers a workable solution for burgeoning foreign-language evidence in the federal court system, however, the Best Evidence Rule should be amended to reflect our multicultural reality and to release foreign-language writings and recordings from its rigid constraints.