Certified Translation of Foreign Documentary Evidence

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Certified Translation of Foreign-Language Evidence for U.S. Courts

A translator’s affidavit or certificate of accuracy may play an important role when foreign-language documents are translated into English for use as evidence in U.S. courts. Attorneys handling foreign documentary evidence may need to address not only the accuracy and certification of the English translation, but also the translator’s qualifications, the underlying original-language document and applicable evidentiary requirements. Authentication can present a separate issue when the evidence consists of foreign public, official, historical or archival records. Three New York decisions illustrate how problems involving certified translation and foreign-language evidence can result in affidavits or other evidence being excluded.

Certification of a Missing Foreign Language Document Ineffective Without Actually Producing It

In the case of Krokh v. Page Taxi Corp., the Plaintiff filed a lawsuit against a taxi company and its driver for causing personal injury as a result of a rear-end collision. Evidence presented in the case included a police report and a personal affidavit provided by the Plaintiff. The affidavit detailed that the Defendant admitted fault at the scene of the accident. To ensure the accuracy of the affidavit’s factual statements provided to the Plaintiff’s bilingual attorney in Russian, the Russian-speaking attorney translated the Plaintiff’s original statement from Russian to English, and then from English to Russian to confirm that her understanding of her client’s statements provided in Russian and then translated to English was correct. This process was supported by an affirmation from the bilingual lawyer who acted as translator attesting to the statement’s accuracy.

However, the Defendants moved to exclude the lawyer-translator’s affidavit as inadmissible, claiming that it did not comply with New York law. They contended that they did not have a chance to compare the submitted affidavit to the Plaintiff’s original Russian statement. Unfortunately for the Plaintiff, the court sided with the Defendants and excluded the affidavit. Consequently, the court also denied the Plaintiff’s motion for summary judgment. It was a significant setback for the Plaintiff, and it appeared as though the Defendants had gained an advantage in the proceedings. The decision highlighted the importance of adhering to proper legal procedures and complying with the law to avoid unfavorable outcomes.

The court’s decision serves as a timely reminder for attorneys that when submitting affidavits from non-native English-speaking parties, it is crucial to follow the proper procedure. Specifically, attorneys should draft an application in the language of the party along with an English translation and an affidavit from a translator attesting to their qualifications and the accuracy of the translation.

It is important to note that when hiring a translator to produce a certified English-language version of a client’s statement, submitting the original foreign-language documents or statements upon which the translation is based is equally important. This step is necessary for the opposing party to have the opportunity to review and compare the original foreign-language document to the translated version.

Missing Translator Certification of Affidavit Can Exclude Evidence Even if Not Based on an Underlying Foreign Language Document

The second case we will discuss, Cupeles v. Carballosa, highlights another important aspect of presenting evidence in court on behalf of non-native English-speaking clients. In this case, the Plaintiff sued a maintenance company and its driver for personal injuries sustained in a rear-end collision in New York City. The Plaintiff submitted a copy of an English-language accident report where the Defendant admitted fault. In response, the Defendant submitted an English-language affidavit, denying the prior admission and outlining a different sequence of events. However, the Defendant did not speak English, and the affidavit was prepared with the assistance of a Spanish-language translator/ interpreter.

The Plaintiff asked the court to preclude the affidavit as inadmissible evidence, as the Spanish translator/ interpreter did not submit a certification of accuracy. The Defendant argued that the New York rules around admission of translated documents did not apply because the plain text of the law requires that “where an affidavit… annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator/ interpreter stating his qualifications and that the translation is accurate.” Counsel for the Defendants claimed that Carballosa’s affidavit was not a foreign language document submitted in English and the Spanish translator/ interpreter did not play any part in preparing it, so there was nothing for the Spanish translator/ interpreter to certify.

However, the court granted the Plaintiff’s motion and precluded the Defendant’s affidavit as inadmissible. The court emphasized that even though the submitted affidavit was not technically a foreign language document, the purpose of the law is to require proof that the affiant actually understood what they swore to, and this applies to requiring an affidavit from the Spanish translator/ interpreter used to communicate with Carballosa in the preparation of his affidavit.

This case serves as a reminder to attorneys representing non-native English-speaking clients that they must be diligent in following the proper procedures for presenting evidence in court. This includes ensuring that all the documents submitted on behalf a non-English-speaking person are accompanied by an affidavit from a qualified translator stating their qualifications and attesting to the accuracy of the translation, regardless of whether the documentary evidence is technically in a foreign language or not.

Unqualified Certification is as Good as No Certification at All

In Salazar v. Kellari Parea, LLC, the Plaintiff filed a personal injury lawsuit against the owner and tenants of a premises after he fell on a staircase while using a hand truck. The Plaintiff alleged that the Defendants were negligent in maintaining the staircase, providing adequate lighting, and installing proper handrails, and that the staircase violated various building code provisions.

However, the lower court granted summary judgment in favor of the Defendants, dismissing the complaint. The court found that the Plaintiff’s accident was caused by his own loss of control of the hand truck, rather than negligent acts by the Defendants. The court also rejected the Plaintiff’s affidavits with evidence to the contrary, even though they were accompanied by a translator’s affidavit, because the Spanish translator’s qualifications were not listed. Without the Plaintiff’s documentary evidence, there was no remaining triable issue of fact. As a result, the appellate court affirmed the lower court’s dismissal and ordered the Plaintiff to pay the Defendants’ court costs.

This case shows the importance of not only obtaining and submitting a translator affidavit with foreign-language materials, but also making sure to comply with the specific requirements of the translator affidavit, such as stating the translator’s qualifications and vouching for the accuracy of the translation.

Foreign Archival Records, Apostilles and Authentication of Documentary Evidence

Foreign documentary evidence is not limited to contemporary contracts, affidavits, correspondence and business records. U.S. litigation, probate, heirship, inheritance, citizenship-by-descent, property and other proceedings may involve foreign archival and historical records, including civil registrations, church and parish records, family registers, probate files, land and property records, court records, immigration documents and other records created decades or even centuries ago.

When historical records must be located in foreign archives or other repositories, additional issues may arise involving provenance, historical jurisdictions, handwriting, terminology, transcription, translation and authentication. All Language Alliance, Inc. assists with foreign archival records research, transcription and translation for legal and genealogical matters, including research involving historical records that may later be submitted in probate, inheritance, heirship, citizenship-by-descent and other legal or administrative proceedings.

Foreign public records submitted as documentary evidence may also bear an Apostille or other authentication certificate issued in the country of origin. When an Apostille and the underlying foreign record are written wholly or partly in another language, the court or other receiving authority may require an English translation of the relevant material. Conversely, U.S. records intended for use in proceedings abroad may require an Apostille or another form of authentication as well as translation into the language required by the receiving authority. All Language Alliance, Inc. assists with Apostille, authentication and certified translation of documents for cross-border legal use.

Authentication of a foreign record and certification of its English translation address different issues. A certified translation addresses the translation and its accuracy; it does not, by itself, establish the authenticity or admissibility of the underlying foreign document. Likewise, the presence of an Apostille does not by itself determine whether evidence is admissible in a particular U.S. proceeding. The applicable requirements depend on the type and origin of the record, the jurisdiction, the purpose for which it is offered and the governing rules of evidence.

How to Make Sure that the Certified English Translation of Foreign Documentary Evidence Is Admissible?

In this blog post, we have discussed three New York cases in which problems involving translation or translator certification affected the use of evidence. These decisions illustrate why attorneys offering foreign-language documentary evidence should determine whether the applicable court rules require submission of the original foreign-language document, a certified English translation, a translator’s affidavit or other supporting documentation. When an affidavit or statement is prepared with the assistance of a translator or interpreter, additional certification requirements may apply. Failure to satisfy the governing requirements can result in exclusion of important evidence.

The cases are Krokh v. Page Taxi Corp., 2020 NY Slip Op 33488 (U) (Sup. Ct. Kings Cty. Oct. 5, 2020); Cupeles v. Carballosa, 2022 NY Slip Op 50342 (U) (Sup. Ct. Bronx Cty. May 2, 2022); and Salazar v. Kellari Parea, LLC, 189 AD 3d 1490 – NY: Appellate Div., 2nd Dept. 2020.

All Language Alliance, Inc. provides certified translation of foreign-language documentary evidence for U.S. litigation and other legal proceedings, including contracts, affidavits, court and corporate records, text messages, social-media content, audio and video evidence, foreign public records, Apostilles, and historical and archival documents. We also provide professional interpreters for depositions and other legal proceedings, forensic transcription and translation, and linguistic expertise when foreign-language evidence requires specialized analysis. Matters involving historical records, probate, heirship, inheritance or foreign beneficiaries may also require genealogy or archival research in addition to certified translation and document authentication.

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