I argued in the Appeals Court recently that an older conviction resting primarily on a Spanish-to-English translation had to be vacated. Why? The Commonwealth's proof of what my client said on recorded jail calls was a set of English-language transcripts (the translations) that were entered into evidence without any witness or exception to the rules against hearsay. The person who translated the jail calls never testified, and the accuracy of the translations was never subject to cross-examination. The resulting Confrontation Clause problem was one of the bigger points of argument for the appeal.
The transcript is the evidence, not the recording
Start with the rule most people get backwards. A transcript of an English recording is a listening aid for the fact finder. A transcript of a foreign-language recording is the evidence.
The source is Commonwealth v. Portillo, 462 Mass. 324 (2012). The Supreme Judicial Court held that where the Commonwealth intends to offer a defendant's recorded statements made in a foreign language, the judge may require the Commonwealth to give defense counsel an English-language transcript in advance of trial, and may exclude the statements if the Commonwealth declines. The reasoning was plain. The language of our courts is English. A prosecutor may not offer a foreign-language recording and rely on the jury's own understanding of it. So “the only evidence of the content of the recorded words is the English-language transcript, not the foreign language recording.”
Read that sentence with a defense eye. If the transcript is the evidence, then the person who made the transcript made the evidence. Who that person is, and whether the defense ever gets to question her, stops being a technicality.
Portillo says how the transcript gets in
Portillo did not leave the mechanism to chance. Where counsel cannot agree on the translation, the Court said, the prosecution and the defendant are each entitled to offer their own transcript in evidence “through the testimony of a translator who meets the criteria to be considered an expert in the foreign language.”
Through the testimony of a translator. The SJC assumed a witness. A transcript that simply appears in evidence, with no one on the stand to say who made it or how, has skipped the step the Court described.
One footnote matters more than its size suggests. A translator need not be a certified or qualified interpreter as defined in G.L. c. 221C, § 1 in order to qualify as an expert; she may be qualified if she is fluent in both languages and her knowledge will assist the jury. Prosecutors cite it to show certification is unnecessary. True, and it cuts the other way with the same force. If certification is not the test, then the bare fact that someone holds a court certification does not establish that she was qualified to translate this recording in this case. Portillo makes qualification a live question, and live questions get answered on cross-examination.
Why a translation made for trial raises a confrontation problem
The Sixth Amendment bars testimonial hearsay unless the declarant testifies, or is unavailable and the defense had an earlier chance to cross-examine. So the question in a translated-evidence case is whether the translation is testimonial, and that usually turns on why it was made. A translation prepared in the ordinary course of something else is one thing. A translation commissioned because the case was headed to trial is another. When the record shows the translations were produced in anticipation of trial, they carry the hallmark the confrontation cases look for.
The Commonwealth's usual answer comes from the interpreter cases. Some courts treat an interpreter as a language conduit: the English words are attributed to the speaker, and a defendant cannot complain that he was denied the chance to confront himself. The federal courts run that theory through multi-factor tests such as the one in United States v. Orm Hieng, which asks, among other things, about the interpreter's qualifications. In Commonwealth v. Adonsoto, 475 Mass. 497 (2016), the SJC used those factors to treat a police-appointed interpreter as the defendant's agent, so her English rendering was not hearsay. On confrontation it stopped short. The Court said it had not previously considered whether an interpreter is the “declarant” for confrontation purposes, called the question significant for the development of our criminal and constitutional jurisprudence, and then “decline[d] to wade into this thicket of unsettled constitutional principles,” content to bypass it because the claim was unpreserved and the defendant had shown no substantial risk of a miscarriage of justice. The question is therefore still open in Massachusetts. In a footnote the Court went further and questioned the validity of the pre-Crawford conduit decisions, “inasmuch as they predate Crawford and rely in large part on the reliability principles that Crawford and its progeny deemed insufficiently protective of a defendant's confrontation rights.” Know those cases, and check them against the facts, because the conduit theory was built for live, two-way interpretation. Adonsoto also sets out the authority pointing the other way. The defendant there relied on United States v. Charles, 722 F.3d 1319 (11th Cir. 2013), where the Eleventh Circuit held that a defendant has the right to cross-examine an interpreter when an officer testifies to the English version of the defendant's foreign-language statements, because the interpreter is the “declarant” of the English. That court found no plain error on its facts, since no binding precedent had yet said so, but the reasoning is there and a Massachusetts court has now had it placed in front of it. That matters here, because a translation prepared afterward from a recording, by a translator the speaker never dealt with, in order to prove his words at trial, sits well outside the conduit model and close to the core of what the Confrontation Clause guards against.
The framework that does fit is recent. Smith v. Arizona, 602 U.S. 779 (2024), held that when an expert conveys an absent analyst's statements in support of the expert's opinion, and those statements support the opinion only if they are true, the statements come in for their truth and the Confrontation Clause is in play. The Supreme Court was talking about a forensic laboratory, but the principle is about a case built on the out-of-court work of someone the fact finder never sees and the defense never questions. An English transcript produced by an absent translator fits that description without much strain.
The SJC has since applied Smith, and its decision is the one to know if you practice here. In Commonwealth v. Gordon, 496 Mass. 554 (2025), a supervisor testified about an absent forensic analyst's notes. The Court held that what the supervisor said about those notes was offered for its truth and was therefore hearsay, that the absent analyst's out-of-court statements documenting her methods and results were testimonial, and that admitting the supervisor's opinion violated the defendant's confrontation rights. Strip out the laboratory and the shape is familiar: one person did the work, a second person carried it into evidence, and the defense never got to question the first. A translator who produces the transcript and never appears stands exactly where the analyst who wrote the notes stood.
The first question from the bench
The first thing I was asked, before I had finished laying out the issues, was whether these arguments had been made below. It is the right question. It usually decides the appeal.
My answer was that the confrontation objection was preserved and a separate hearsay theory was not. I said so plainly. Stretching the record on preservation loses in front of a panel that has read it. Preservation here rested on what trial counsel told the judge: that he could not cross-examine the translator because she was not there, and that he had never been given anything establishing her qualifications. He did not deliver a constitutional argument, and he did not need to, because he had put the judge on notice that evidence was about to come in untested and that he wanted to test it but could not.
The difference that answer makes is large. A preserved constitutional error puts the Commonwealth to proving it harmless beyond a reasonable doubt. An unpreserved one leaves the defendant to show a substantial risk of a miscarriage of justice. Same record, different burden.
Two lessons fall out of this, and they belong to trial counsel more than to me. Put what you cannot do, and why, on the record. An objection that names the problem preserves more than an objection that simply says “objection.” And concede what is not preserved. The panel knows the record. Claiming preservation you do not have costs credibility on the points where you do.
What to do before trial
Start with the recording itself. Adonsoto did more than decline the constitutional question; it announced a protocol requiring, when practicable, that a defendant's statements made through an interpreter be recorded, and tied that to Portillo's requirement that the Commonwealth hand over a translated transcript of any foreign-language recording it intends to use. The Court said the protocol would also “provide a method to determine whether the confrontation clause applies at all.” That is worth understanding. Whether the clause is engaged turns on whether the translation is offered for its truth, and in Adonsoto the Court observed that the relevance of the officer's testimony depended on the fact finder accepting the translation as accurate. So the recording is not simply a reliability safeguard. It is the thing that lets anyone test the premise the Commonwealth's case rests on.
If the Commonwealth intends to offer recordings of your client in another language, ask for the English transcript early, in writing, and cite Portillo in the request, because the transcript is the evidence and you cannot litigate evidence you have not seen.
Then ask who produced it. Get the name and the qualifications, and get both on the record. If the answer is thin, that is a question for the judge before any of it reaches the fact finder.
If you dispute the translation, Portillo contemplates that the defense may prepare and offer its own, and it expressly notes that an indigent defendant may seek funds for a translator under G.L. c. 261, § 27C. That route exists. It is used far less often than it should be.
And if the translator is not going to appear, say on the record that you cannot cross-examine an absent translator and that you have not been given her qualifications. If the evidence comes in anyway, those two sentences may be the difference on appeal between harmlessness beyond a reasonable doubt and a substantial risk of a miscarriage of justice.
I handle criminal appeals in the Massachusetts Appeals Court and the Supreme Judicial Court, including cases that turn on translated evidence, confrontation, and what the trial record actually preserved. If you are considering an appeal and want a candid view of what is in the record, I offer a confidential initial consultation.
For a consultation, call (617) 313-3482 or contact the office.