By Caleb Younger*

Must interpreters be available for cross examination under the Confrontation Clause? In this Contribution, Caleb Younger (’19) discusses the conduit theory in light of the Supreme Court’s decision in Crawford v. Washington and subsequent lower court findings. Ultimately, this Contribution argues that the Crawford Court properly interpreted the Sixth Amendment and that the language conduit theory fails under both Supreme Court jurisprudence and the Constitutional text.

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”2 The right to confront and cross-examine witnesses who produce testimony is therefore guaranteed by the Constitution. Prior to 2004, courts determined the admissibility of hearsay statements at least partially based on reliability concerns.3 The language conduit theory prevailed when determining the admissibility of statements made by interpreters.4 Courts determined whether the interpreter was a conduit – a mere channel through which the statement passively changed from one language to another – of the original speaker by using factors that looked at whether an interpreter during police interviews provided an accurate and reliable translation; if they did, then interpretations could be used as evidence without the interpreter being available for cross-examination.5

When the Supreme Court reinterpreted the Confrontation Clause in Crawford v. Washington, the majority opinion rejected this balancing of factors in favor of a clear-cut rule prohibiting the admission of testimonial evidence in the absence of an opportunity for confrontation.6 Later Supreme Court cases further developed the requirements for the Confrontation Clause. In Bullcoming v. New Mexico, the Court held that forensics tests could not be admitted as evidence unless the laboratory analyst who did the test was made available for cross-examination.7

But the future of the language conduit theory remains uncertain. The Fourth, Seventh, Eighth, and Ninth Circuits have all found that the theory still applies to interpreters post-Crawford.8  These courts’ opinions, however, raise questions about how Crawford’s uncompromising standard fits with the extant legal framework with regards to the admissibility of interpreters’ statements. The Eleventh Circuit, on the other hand, has held that Crawford requires a retreat from the language conduit theory.9

This Contribution will ultimately argue that the Crawford Court properly interpreted the Sixth Amendment and that the language conduit theory fails under both Supreme Court jurisprudence and the Constitutional text. Interpreters are new declarants providing testimonial witness against a defendant, and thus must be available under the Confrontation Clause.

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In 1912, the Seventh Circuit first ruled that when a person whose declaration is admissible “assent[s] to the use of an interpreter… they necessarily assume that the interpreter is trustworthy, which makes his language presumptively their own.”10 Although the court did not use the words “language conduit” in this opinion, later cases accepted and expanded on this theory.11 These language conduit theories developed in the shadow of Ohio v. Roberts, wherein the Supreme Court precedent affirmed that “indicia of reliability” were central to determining whether hearsay statements could be admitted when the declarant was absent.12

In Crawford v. Washington, the Court set out a new framework to determine whether hearsay statements could be admitted, overturning the precedent of Ohio v. Roberts.13 The Court found that “[a]dmitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation.”14 Instead, “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the United States Constitution actually prescribes: confrontation.”15 If a statement is testimonial, then it implicates the Confrontation Clause of the Sixth Amendment.16 The only way that interpreters will not fall under the Confrontation Clause is if they are (1) not providing testimony and (2) are a separate witness.

Testimonial statements include “material such as affidavits. . . or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.”17 To be considered testimonial, a statement must have the primary purpose of establishing past events potentially relevant to criminal prosecution.18 And “statements taken by police officers in the course of interrogations are definitively testimonial,” as are witness statements given to investigating officers.19  The Confrontation Clause does not distinguish between accurate and inaccurate testimony, requiring only that any testimony be subject to cross-examination.

This logic explains the holding in Bullcoming v. New Mexico that forensics reports could not be admitted without allowing confrontation of the person who prepared the report.20  The Supreme Court wasn’t solely concerned with reliability and degrees of accuracy, holding that the proper method for that determination was thorough cross-examination by the defendant.21 Unless the defendant had the ability to cross-examine the declarant of a report, even one as binary as whether a substance was cocaine or not, then it was inadmissible.22

The Sixth Amendment’s Confrontation Clause cannot do any work if the person providing testimonial evidence is the defendant the testimony is being used against – one cannot claim the right to confrontation against oneself. The language conduit theory maintains that the interpreter is merely a conduit whose English translation is properly imputed to the original speaker and therefore that the interpreter’s translation “translation is attributable to the defendant as his own admission and is properly characterizable as non-hearsay.”23

This reasoning that an interpreter’s translations are the defendant’s declarations was not considered absolute, however.  The Ninth Circuit provided a list of factors which have been used by multiple courts since.24  These factors looked at (1) which party supplied the interpreter; (2) whether the interpreter had any motive to mislead; (3) the interpreter’s skill and qualification in the language; and (4) whether subsequent actions by the defendant were consistent with the translation.25 This fact-specific, case-by-case inquiry could look at both the reliability of the interpreter and whether they were actually serving as a conduit for the defendant.

After Crawford, a number of circuits, including the Fourth, Seventh, Eighth, and Ninth, reaffirmed their precedents.26 In United States v. Orm Hieng, the Ninth Circuit stated that “we can apply Nazemian without running afoul of Crawford.”27 That case reasoned that Crawford analysis looked at hearsay statements, but if the statements were attributed to the defendant under the language conduit theory, they were non-hearsay.28 The Ninth Circuit did so even after the Supreme Court’s ruling in Bullcoming v. New Mexico.29  This reasoning did track with past precedent, such as the Second Circuit in United States v. Da Silva.30  Rather than applying the language conduit theory to suggest that an interpreter was the same declarant as the defendant, the court held that the defendant had explicitly authorized the interpreter to speak on their behalf.31  Because this fit into a non-hearsay exception, it could be admitted.

The Eleventh Circuit took a different view of the Supreme Court’s new framework and its effect on the language conduit theory. It held in United States v. Charles that the language conduit theory could no longer survive post-Crawford because it looked at reliability of an interpreter instead of whether the interpreter acted as a testimonial witness or new declarant.32  The Eleventh Circuit wrote that “even though an interpreter’s statements may be perceived as reliable and thus admissible under the hearsay rules, the Court, in Crawford, rejected reliability as too narrow a test for protecting against Confrontation Clause violations.”33 And they also noted that “none of the [Nazemian] factors… bear upon the basic fact that the interpreter is the speaker (declarant) of the out-of-court English language statements”34 The Eleventh Circuit created this new circuit split because it correctly read the Supreme Court’s post-Crawford framework as requiring a determination not of interpreter reliability, but a determination of the identity of a testimonial witness.35

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The Eleventh Circuit’s view is correct because interpreters are providing testimony as separate declarants. In any police interview, both initial responses by the defendant and the translator’s interpretations to an officer are testimonial, as they can both expect that their words establish past events and might be used prosecutorially.36 Interpretation in police interviews will always be testimonial – the struggle is merely over who is actually providing this testimony.  The language conduit theory fails because it determines admissibility on reliability grounds instead of looking at whether there are separate declarants for testimony.

A defendant’s statement in one language and the interpreter’s translation into a different language are two separate declarations by two separate declarants. Because interpretation “does not provide for a one-to-one correspondence between words or concepts in different languages,” the translator must make assumptions and assertions at every moment because languages do not correspond exactly.37 A translator “ma[kes] representations each time he translate[s] statements from one language to another.”38 While the defendant is always the declarant of the words they speak, the interpreter is the declarant of the English statements.39  Because the translation is a new expression of ideas—even assuming it accurately or reliably communicates the ideas of the initial declarant—it is new testimonial evidence by a new declarant.40

The Nazemian factors look to the reliability of an interpreter but do not adequately prove that an interpreter is not a declarant in their role as a conduit.41 While there are potential cases where an interpreter is an agent of the defendant, that is best dealt with through agent authorization frameworks and not the language conduit theory.

The Supreme Court’s ruling in Bullcoming v. New Mexico also weighs against the language conduit theory.42 In that case, the Court held that preparing a forensics report made the preparer a new declarant.43 Interpreters exercise more discretion than laboratory analysts because “translation from one language to another is much less of a science than conducting laboratory tests, and so much more subject to error and dispute.”44 That means that the importance of potential confrontation is higher and can have greater probative value. The lack of scientific precision in a one-to-one relationship only demonstrates the need for confrontation.

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The language conduit theory might still be used by the majority of circuits, but after Crawford and Bullcoming, the Eleventh Circuit’s approach is more consistent with Supreme Court precedent.  As interpreters’ declarations are separate testimonial statements, to comply with the Confrontation Clause, they must be available for confrontation or their out-of-court statements should not be admitted.

* Caleb Younger is a 3L at New York University School of Law. This piece is a commentary on the 2018 problem at the Jerome Prince Memorial Evidence Moot Court Competition hosted by Brooklyn Law School. The issue in the problem dealt with whether an interpreter in a law enforcement interview must be available for confrontation to admit an English translation. The views expressed in this piece do not necessarily reflect the views of the author. Rather, this article is a distillation of one side of the arguments made by the team at the Jerome Prince Memorial Evidence Moot Court Competition.

2. U.S. Const. amend. VI

3. See Ohio v. Roberts, 448 U.S. 56, 66 (1980) (discussing the need for “indicia of reliability” for hearsay statements to be admissible).

4. See United States v. Ushakow, 474 F.2d 1244, 1245 (9th Cir. 1973).

5. See United States v. Nazemian, 948 F.2d 522 (9th Cir. 1991).

6. 541 U.S. 36, 68-69 (2011) (“Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. . . [This rule] applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.”).

7. 564 U.S. 647, 661 (2011) (“Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess the scientific acumen of Mme. Curie and the veracity of Mother Teresa.”) (internal citations omitted).

8. See United States v. Vidacak, 553 F.3d 344, 352 (4th Cir. 2009); United States v. Tolliver, 454 F.3d 660, 664-65 (7th Cir. 2006); United States v. Sanchez-Gondinez, 444 F.3d 957, 960 (8th Cir. 2006); United States v. Romo-Chavez, 681 F.3d 955, 959 (9th Cir. 2012); see also United States v. Orm Hieng, 679 F.3d 1131, 1149 (9th Cir. 2012) (Berzon J., concurring).

9. See United States v. Charles, 722 F.3d 1319, 1327 n. 9 (11th Cir. 2013) (“[W]e find unpersuasive the Ninth Circuit’s use of the language conduit theory and its underlying factual considerations to conclude that the interpreter and defendant are identical for testimonial purposes.”)

10. Guan Lee v. United States, 198 F. 596, 601 (7th Cir. 1912).

11. See Ushakow, 474 F.2d at 1245; United States v. Da Silva, 725 F.2d 828, 831 (2nd Cir. 1983).

12. See Roberts, 448 U.S. at 66.

13. See Crawford, 541 U.S. at 60.

14. Id. at 61.

15. Id. at 68-69.

16. Id.

17. Id. at 51.

18. See Davis v. Washington, 547 U.S. 813, 822 (2006).

19. United States v. Baker, 432 F.3d 1189, 1204 (11th Cir. 2005); see also United States v. Arbolaez, 450 F.3d, 1283, 1291 (11th Cir. 2006).

20. 564 U.S. 647, 661 (2011).

21. See id. at 662.

22. Id.

23. United States v. Da Silva, 725 F.2d 828, 831 (2nd Cir. 1983).

24. See United States v. Martinez-Gaytan, 213 F.3d 890, 892 (5th Cir. 2000); Orm Hieng, 679 F.3d at 1140.

25. See United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991).

26. See Vidacak, 553 F.3d at 352); Tolliver, 454 F.3d at 664-65; Sanchez-Gondinez, 444 F.3d at 960; Romo-Chavez, 681 F.3d at 959.

27. 679 F.3d at 1140.

28. Id.

29. Id.

30. 725 F.2d at 832.

31. Id.

32. 722 F.3d at 1327.

33. Id.

34. Id. at n. 9.

35. Id. at 1328 n. 10 (“As Crawford instructs, a proper Confrontation Clause analysis does not begin or end with a determination of whether a statement constitutes ‘impermissible hearsay.’ Instead, a proper analysis first requires a determination of whether the declarant’s statement is ‘testimonial,’ i.e. a declaration offered for the purpose of proving some fact to be used at trial, and if so, the Sixth Amendment is satisfied only if the declarant is unavailable and there was a prior opportunity for cross-examination.”).

36. See Crawford, 541 U.S. at 51.

37. Charles, 722 F.3d at 1324.

38. Taylor v. State, 226 Md. App. 317, 349 (2016).

39. See Charles, 722 F. 3d at 1324 (“Charles is the declarant of her out-of-court Creole language statements and the language interpreter is the declarant of her out-of-court English language statements.”).

40. Id. at 1327.

41. See Nazemian, 948 F.2d at 527.

42. 564 U.S. 647 (2011).

43. Id. at 658-59 (finding that “[a]n analyst’s certification prepared in connection with a criminal investigation or prosecution” is testimonial evidence and therefore that “analysts who write reports that the prosecution introduces must be made available for confrontation” as testimonial declarants).

44. Orm Hieng, 679 F.3d at 1149 (Berzon J., concurring) (emphasis in original).