NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Portillo, 462 Mass. 324 (2012)

CONTRIBUTING EDITOR: MATTHEW GALLAGHER I. Procedural History

Portillo moved to suppress statements he made to police during his interrogation under the Fifth and Fourteenth Amendments of the U.S. Constitution and article 12 of the Massachusetts Declaration of Rights because he had not been advised of his Miranda rights.1 The motion judge granted Portillos motion to suppressincluding the audio recording of the interrogation and the interrogating officers testimony regarding Portillos statements made during the interrogationbecause the Prosecution refused to provide the defense with a transcript of the Spanishlanguage interrogation despite having ample time to do so.2 The Commonwealth filed an interlocutory appeal, which was approved by a single justice of the Supreme Judicial Court (SJC). After being entered into the Appeals Court, the case was transferred to the SJC on its own motion.3 II. Facts Felix Portillo was charged with distribution of marijuana and possession of marijuana with intent to distribute.4 Portillo was interrogated by two officers in the Spanish language, and the interrogation was tape recorded.5 During discovery, the prosecution only provided the defense with a copy of the tape recording and not an English or Spanish transcript of the interrogation.6

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Commonwealth v. Portillo, 462 Mass. 324, 325 (2012). Id. Id. at 325-326. Id. at 326. Id. Id.

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III. Issue Presented In Commonwealth v. Portillo, the SJC considered whether the prosecution must provide the defendant with an English-translated transcript of recorded deposition testimony taken in a language besides English that the prosecution intends to offer into evidence at trial or any evidentiary hearing.7 IV. Holdings and Reasoning The SJC held that where an interrogation was recorded by police, taken in a language besides English, and the prosecution intends to offer the testimony into evidence at trial or in an evidentiary hearing, the prosecution must provide an English transcript of the deposition to the defense or the statements will be excluded.8 The English-language transcript must be given to the defense sufficiently in advance of trial in order to resolve any questions of accuracy regarding the translation.9 The SJC recognized, pursuant to Mass. R. Crim. P. 14(a)(1)(A)(i), that the prosecution need not provide a transcript to the defendant for all recorded deposition testimony taken in English or another language providing a defendant with a copy of the recording is sufficient.10 The same applies for recorded testimony taken in English that the prosecution intends to introduce at trial.11 However, if the prosecution intends to introduce a transcript of a recorded deposition testimony into evidence at trial it must provide the defendant with a copy of said transcript sufficiently in advance of its use.12 Adopting the procedure of the First Circuit, parties should stipulate to one transcript of a recording before trial.13 Absent stipulation both parties may submit authenticated copies of the transcript and the jury is allowed to decide the accuracy of the transcripts.14 Jurors should also be instructed that they can disregard portions of the transcripts that they believe differs from what they hear on a recording.15 The language of Massachusetts and Federal courts is English.16 When a
See Commonwealth v. Portillo, 462 Mass. at 325. Id. at 332. 9 Id. 10 Id. at 326. 11 Id. at 327, citing Commonwealth v. Gordon, 389 Mass. 351, 355 (1983). 12 Id., citing United States v. Morales Madera, 352 F.3d 1, 8 (1st Cir. 2003), cert. denied, 541 U.S. 965 (2004). 13 See Commonwealth v. Portillo, 462 Mass. at 327-328, quoting United States v. Rengifo, 789 F.2d 975, 983 (1st Cir. 1986).
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Id. Id. Id. at 328, citing Commonwealth v. Festa, 369 Mass. 419, 430 (1976).

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recorded statement is taken in a language besides English and the recorded statement is to be entered into evidence at trial or an evidentiary hearing, an English-language transcript of the statement must be provided.17 The recorded statement cannot be offered into evidence without an English transcript because it is the English word that is the evidence, not the recording.18 A recording taken in a foreign language may only be admitted into evidence if there is relevant evidence on the recording besides the contents of the statementssuch as tone of voice or inflection, regarding a question of voluntariness.19 However, a court must weigh the probative value of the recording against the risk of prejudice before admitting the recording into evidence.20 A prosecutor may not rely on the jurys understanding of a foreign language to discern the meaning of the recording because it is the interpreted testimony that is evidence, not the jurors translation.21 The same procedure used for transcripts of English-language recordings is to be used for foreign-language recordingsthe parties should stipulate to one transcript, or in the event the parties cannot agree, the parties may each submit their own transcripts into evidence through the testimony of a translator.22 In order to effectuate this process, the prosecution must supply the defendant with an English copy of the transcript adequately in advance of trial to allow defense counsel to consider whether an agreement can be reached or to retain a translator and produce a separate English-language transcript.23

Id., citing Commonwealth v. Festa, 369 Mass. at 430. Id., citing Commonwealth v. Festa, 369 Mass. at 430, and United States v. Morales Madera, 352 F.3d at 8.
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Commonwealth v. Portillo, 462 Mass. at 328-329. Id. at 329. Id. at 328. Id. at 329. Id. at 330.