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During a trial, sometimes the prosecutor must present written materials (emails, text messages, files) obtained from the defendant as evidence in order to prove something. Sometimes this evidence can be crucial to the trial, i.e., the prosecutor might not win the case if this evidence is absent. If the defendants are a few people, this could be text message exchanges or handwritten notes between the defendants; if the defendant is a company, this could be internal emails or internal files, etc.

Now, if the material is in another language, say, Japanese, I suppose the prosecutor can just provide a certified translation and there'd be no problem. However, what if that language is specifically ambiguous, not as in that it's vague and unclear, but as in that one could interpret as its own opposite?

For example, in Japanese, 荒天 (read as kouten) means terrible weather, but 好天 (read as kouten) means good weather. 生きたい (read as ikitai) means want to live, but 逝きたい (read as ikitai) means want to pass away. You can see that it's not something that's vague, but these words with the same pronunciation are literally the opposite of each other. What if in a case, the defendant wrote IKITAI in roman letters, and suppose that the intention of this word is really important to the case, how can the prosecutor argue that it means "want to pass away" while the defendant argues that it means "want to live", since the defendant is the one who wrote it and should have the final say on what it means?

If I'm the translator, I might just straight up tell them that it's untranslatable, since both explanations are equally likely. The prosecutor might instruct the translator to pick the translation that favours them, but once it is discovered in court that the translation is misleading, because the opposite interpretation is equally likely, does the court have to throw this evidence out?

I guess this is different from using coded language, which you can do in any language, like instead of saying "rob the bank", one could use the term "go to the mall" or even invent new words in all discussions. In my supposed situation above, both terms are legitimate and can be found in a dictionary. It's not something made-up at all, so the prosecutor can't even argue that this is a coded message, but perfectly normal and grammatical Japanese. Does the prosecutor have no choice other than to give up translating this material and thus not to present it in court?

All jurisdictions are welcome, but I'm more interested in the US and Canada.

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    Japanese is not an "inherently ambiguous" language. In writing using Kanji, it is absolutely unambiguous. Only when you reduce it to hiragana and katakana only it becomes ambiguous, but that is not how you would read a text. And while the hiragana/katakana of two word combinations might be the same, they are not pronounced the same! Like, look at this lesson on pitch-accent in Japanese which shows a tiny look into the pronounciation and accent pattern - which can make a huge difference between two words.
    – Trish
    Jan 18 at 20:53
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    @Trish Maybe I should be more clear: my question is about how does the law treat such ambiguities, and whether it's possible to exploit these loopholes in the law to prevent prosecutors from using a particular thing as evidence. Surely there are ways to express things clearly, but if I intended to exploit these homonyms, could I do it? That's the question here.
    – dvx2718
    Jan 18 at 21:08
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    @Trish "Japanese is not ambigious because you generally don't write in just hiragana but use Kanji" Very true. But here I wanna be purposefully ambiguous to maybe make the prosecutor unable to use some evidence. Could I do that?
    – dvx2718
    Jan 18 at 21:09
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    It should be noted that answer can't be very different of what happens when the ambiguity doesn't involve different languages. Ambiguous sentences can be produced in any language, including that of the court.
    – Pere
    Jan 20 at 12:53
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    It needn't even involve languages foreign to the court: the conviction of Derek Bentley in England hinged entirely on the interpretation of the sentence, "Let him have it, Chris!" - which could mean either to shoot or to hand over the weapon. Jan 20 at 17:44

3 Answers 3

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Courts will rely on expert evidence for translations

The evidence can be presented, but parties seeking a particular interpretation would present expert opinion evidence on the issue. It would be for the finder of fact (a jury, where there is one, or the judge, if sitting alone) to weigh the expert evidence, along with all the other relevant evidence, in concluding whether the ultimate issue has been proved beyond a reasonable doubt by the prosecution.

Relevance of the translation is usually for some downstream issue

Note that the ultimate issue will never be whether the letter said X. The ultimate issue that the letter would have been submitted in support of would be something like intention, or identity, or planning, etc.

An example

For an example, see: R. v. Abdullahi, 2021 ONCA 82 (reversed in 2023 SCC 19, but not on this point). The judge recognized the evidence of a Toronto Police Service employee regarding the translation of Somali language portions of intercepted communications. The defence cross-examined the expert on his proffered translation (e.g. on issues like whether "habib" meant "gun" or "stick"). The judge found the translator sufficiently reliable to allow the translation to be admitted, with any questions about the accuracy of any bit of the translation to be left to the jury to decide based on the evidence and cross-examination.

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Context matters

For example, I give you the English word fuck

One of the most interesting words in the English language today is the word ‘fuck’. It is one magical word: just by its sound it can describe pain, pleasure, hate and love. In language it falls into many grammatical categories. It can be used as a verb, both transitive (John fucked Mary) and intransitive (Mary was fucked by John), and as a noun (Mary is a fine fuck). It can be used as an adjective (Mary is fucking beautiful). As you can see there are not many words with the versatility of ‘fuck’.

Besides the sexual meaning, there are also the following uses:

Fraud: I got fucked at the used car lot.

Ignorance: Fucked if I know.

Trouble: I guess I am fucked now!

Aggression: Fuck you!

Displeasure: What the fuck is going on here?

Difficulty: I can’t understand this fucking job.

Incompetence: He is a fuck-off.

Suspicion: What the fuck are you doing? Enjoyment: I had a fucking good time.

Request: Get the fuck out of here!

Hostility: I am going to knock your fucking head off!

Greeting: How the fuck are you?

Apathy: Who gives a fuck?

Innovation: Get a bigger fucking hammer.

Surprise: Fuck! You scared the shit out of me!

Anxiety: Today is really fucked.

The interpretation of what someone meant by this particular word is often pivotal to many cases, civil and criminal. Yet courts manage to interpret all the time.

For example, there is a difference between “fuck the police” said with a raised fist at a protest, and “fuck the police” said as the punchline of a joke. Context matters.

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    Or "fuck the police" from someone in a gathering of law enforcement officer's romantic partners and spouses.
    – ohwilleke
    Jan 18 at 22:43
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    "intransitive (Mary was fucked by John)" That's passive voice, not intransitive. "For example, there is a difference between “fuck the police” said with a raised fist, and “fuck the police” said while throwing a rock at a police officer." The difference is in the additional action, not in the meaning of the utterance. "Context matters" doesn't mean "x+a means something different from x+b", it means "x means something different depending on whether it's in x+a versus x+b". Jan 18 at 23:30
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    @Acccumulation it’s not my quote, it was included for it’s overall impact rather than accurate definitions of grammar
    – Dale M
    Jan 19 at 1:41
  • @ohwilleke And of course, "Fuck the Draft" - Cohen v. California, 403 U.S. 15 (1971)
    – Trish
    Jan 19 at 9:23
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    @Acccumulation Intransitive could be “this fucks”. And “I got fucked at the used parking lot” could mean fraud, sex or intoxication, so context does matter. I don't think that quote, while famous, illustrates any of this well.
    – wizzwizz4
    Jan 20 at 1:22
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I assume you are asking about documents entered in evidence. The document is available to both parties, and the court does not interpret the document. Instead, they admit testimony as to what the document says, in English translation (in US courts). Each side finds a competent translator, and the translation becomes a question of fact possibly in dispute. The jury then has to evaluate the arguments that there is a document saying so-and-so.

Each attorney then bears the burden of having or lacking a clue about the linguistic issue. No language is free of ambiguity, and there no "perfect" translation from one language to another, at best the question is whether translation A is better than translation B, a question that comes up under cross examination of the translator (unless that attorney didn't do his homework). A good attorney could cast doubt on the accuracy of a proffered translation under cross-examination (this sword has two edges).

A separate complication is the situation where a witness testifies in a foreign language, which (nominally) requires an approved translator. It is indeed possible for a translator to err in their translation of the testimony, which raises substantial problem on appeal (since the testimony is not a pre-existing document subject to discovery and independent scrutiny).

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