Portillo Applies to Prosecutors, Not Defendants: Commonwealth v. Figueroa (AC 25-P-1027, August 7, 2026)

The Appeals Court affirmed the assault conviction of a Spanish-speaking defendant whose interrogation was never transcribed, holding that Commonwealth v. Portillo does not require prosecutors to provide English translations when using foreign-language statements in rebuttal.

Daniel Figueroa was convicted of assault and battery by means of a dangerous weapon after a jury trial in Middlesex County. At trial, Figueroa testified through an interpreter that he used a tree branch to defend himself from two brothers who attacked him with knives at a Framingham park in 2019. The Commonwealth impeached his testimony with statements he made to a Spanish-speaking detective after his arrest, statements in which he never mentioned knives or a tree branch.

Figueroa argued the trial judge erred by admitting the detective’s testimony about his post-arrest statements without an English transcript. The Commonwealth never provided one, despite having an audio and video recording of the interrogation.

Portillo’s Scope

In Commonwealth v. Portillo, the Supreme Judicial Court held that trial judges have discretion to require the Commonwealth to provide defense counsel with an English transcript when introducing a defendant’s foreign-language statements in its case-in-chief. The defendant asked the Appeals Court to extend Portillo in two ways: first, to require transcripts whenever the Commonwealth uses such statements against a defendant (not just in its case-in-chief), and second, to make a judge’s failure to require a transcript automatically an abuse of discretion.

The Appeals Court declined both invitations. Justice D’Angelo wrote that Portillo does not require the result the defendant sought and that an intermediate appellate court cannot alter a rule of law established by the Supreme Judicial Court.

The court noted that evidence properly excluded from the prosecution’s case-in-chief may be admissible in rebuttal. When a defendant voluntarily takes the stand, he waives his privilege against self-incrimination and may be impeached like any other witness. In some circumstances, a defendant’s decision to testify may permit the admission of evidence that otherwise would have been inadmissible.

The trial judge properly ruled that the Commonwealth could not use the statements in its case-in-chief and cautioned the defendant that if he testified, his prior statements might be admissible. The court found no abuse of discretion.

No Prejudice Shown

The defendant failed to show, either at trial or in his motion for a new trial, that the detective was inaccurate in his translation of the defendant’s statements or that his memory failed in any way. The defendant never argued he was unprepared or unable to cross-examine the detective, nor did he seek a continuance to obtain a translation of the recording.

The court added a cautionary note for prosecutors. The decision should not suggest that a judge could not, in the proper exercise of discretion, deny the Commonwealth’s attempt to introduce statements from interrogating officers without first providing a translated transcript. Prudence, the court said, would dictate translating such interviews and providing defense counsel with copies.

Medical Records

Figueroa also challenged the admission of three statements from his medical records. Two statements from hospital records referenced that he was in police custody and had been arrested. A third statement, from an ambulance patient care report, noted that his head started hurting when police picked him up.

The court did not decide whether the admission of the hospital custody references was erroneous because, even if it was error, it was not prejudicial. The references were cumulative of Figueroa’s own testimony that he drove himself home after the altercation, was arrested there by police, complained of dizziness, and was brought to a hospital.

The ambulance record statement was properly admitted as a hospital record. The statement pertained to the types of injuries the defendant sustained and the timing of symptom onset, which relates directly to treatment and medical history. The probative value of this evidence was not substantially outweighed by the danger of unfair prejudice.

The Bottom Line

The decision clarifies that Portillo’s protections for non-English-speaking defendants apply to the Commonwealth’s case-in-chief but do not automatically extend to rebuttal. When a defendant testifies, prior inconsistent statements may be used to impeach credibility, even when those statements were made in a foreign language and never transcribed. The burden falls on the defendant to show inaccuracy in translation or memory, or to seek a continuance to verify the detective’s testimony.

The conviction was affirmed. The denial of Figueroa’s motion for a new trial was also affirmed.

Read the full opinion: Commonwealth v. Figueroa (AC-25-P-1027, August 7, 2026).