Whether A Translation Is A "Mere[] ... Conduit" For A Declarant's Statement?

In methamphepamine distribution trial, defendant's answers to custom inspectors' questions were not hearsay statements by it's interpreter, entitling the defendant under the Sixth Amendment to the right to cross-examine the translator under Crawford because the statements at issue were "considered statements of the original declarant" having satisfied a four-factor test used in the Ninth Circuit to determine when a translator acts as merely a language conduit of the declarant, in United States v. Romo-Chavez, 681 F.3d 955 (9th Cir. May 23, 2012) (No. 10–10424)

What factors does a court use to determine if a statement made in a foreign language should be considered, when translated, a statement by the declarant speaking through the translator? How can it be determined if a translator acted "merely as a language conduit" for the declarant? The Ninth Circuit recently examined a case in which it briefly touched on the test applicable to determining the status of a translated statement. The majority found that the evidence was sufficient to show that the translator acted as a "mere[ ] ... conduit" for the defendant's statements, and not entitling the defendant to a right to cross-examine the translator.

In the case, defendant Romo-Chavez was arrested at a border crossing in Nogales. The vehicle he was diving was found to hide "almost six kilograms of 99.6% pure methamphetamine" in a gas tank compartment. Border officers found his explanations for driving to the U.S. suspect, at times inconsistent, and his vehicle seemed altered in suspect. The defendant was arrested on drug charges upon officers finding methamphetamine and questioning him about his role in its presence in the car.

At the defendant's trial, the defendant's theory was that he was unaware of the drugs in the vehicle gas tank. Many of the statements he allegedly made at the time of the search and arrest, he contended, had been obtained through the assistance of an interpreter and had been inadequately interpreted. Admitting these statements at trial as a party's admission under FRE 801(d)(2) would be possible under the Sixth Amendment only if the defendant was afforded the opportunity to cross-examine the translator. After the jury convicted the defendant, he appealed, challenging the admission of many of the statements made, contending they had not been properly translated. The defendant claimed that the trial judge's admission of the statements violated the Sixth Amendment in that he did not have the opportunity to cross-examine the translator at trial. The circuit noted that the statements could be considered as a party admission under FRE 801(d)(2),but the issue raised involved whether the disputed “translated statements ... 'fairly should be considered the statements' of Romo–Chavez." Romo-Chavez, 681 F.3d at 959.

The Ninth Circuit rejected this challenge, indicating that the statements at issue were admissible and were properly considered statements directly made by the defendant to officers. The circuit indicated that a four-factor test applied to resolving the issue of translation:

Whether statements made through an interpreter should be considered statements of the original declarant “require[s] an analysis of the facts on a case-by-case basis.” Generally, we consider “the following four factors ...:(1) which party supplied the interpreter, (2) whether the interpreter had any motive to mislead or distort, (3) the interpreter's qualifications and language skill, and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated.”
Romo-Chavez, 681 F.3d at 959 (citing United States v. Garcia, 16 F.3d 341, 342-43 (9th Cir. 1994) (citation and internal quotation marks omitted))

The circuit application of the four-factor test was not complicated, as indicated in the chart below:

Which party supplied the interpreter?The circuit concluded this factor "weights slightly" in defendant's favor because the translator (Officer Hernandez) was an employee of the prosecuting side of the case. This factor is "never dispositive," cautioned the circuit, but it had "great weight when the person translating is acting "both as a translator and a federal law enforcement officer." This could be assessed by examining the questions, if any, were initiated independently by the translator, rather than on behalf of another, and whether these questions were "the type of questions he 'normally would ask' as an officer rather than translator." Romo-Chavez, 681 F.3d at 960.
Whether the interpreter had any motive to mislead or distort?This factor weighed in the prosecutor's favor as the translator "had no motive to distort the translation" and the defendant failed to argue that Hernandez did have such motive, other than that as a "public servant [he] is inherently biased." This was going too far. Romo-Chavez, 681 F.3d at 960 (citing United States v. Martinez–Gaytan, 213 F.3d 890, 892 (5th Cir. 2000)).
What were the interpreter's qualifications and language skills? The standard here was easily met by Hernandez the translator, as he had "sufficient fluency" for the task. Despite a few minor mistakes in his translation, it was sufficient that the officer "grew up in El Paso speaking Spanish, studied it in school, spoke it at home with his wife, and conducted interviews in it on a regular basis." Romo-Chavez, 681 F.3d at 960.
Whether actions taken by the defendant after the translated conversation were consistent with the statements as translated? This factor did not even arise in the defendant's case since the defendant took no action, either consistent or inconsistent with the translated statement. Accordingly, this factor was not relevant to the application of the test, particularly as one examined "objective action rather than a party's litigated position." Romo-Chavez, 681 F.3d at 960.

The circuit concluded that the factors weighed in favor of the conclusion that the officer "served merely as a language conduit" for the defendant. This was important for Sixth Amendment purposes as:

The Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. However, this right is not implicated here because Officer Hernandez's translations are properly construed as Romo–Chavez's own statements. [United States v.] Nazemian, 948 F.2d 522, 525–26 (9th Cir. 1991). Even if it were, however, it was satisfied by Officer Hernandez's appearance at trial. He may not have remembered the interview, but “ ‘[t]he Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion.’ “ United States v. Owens, 484 U.S. 554, 558 (1988) (quoting Delaware v. Fensterer, 474 U.S. 15, 21–22 (1985) (per curiam)). All the Confrontation Clause requires is the ability to cross-examine the witness about his faulty recollections. Id.; see also Crawford v. Washington, 541 U.S. 36, 59 n. 9 (2004) (“Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”).
Romo-Chavez, 681 F.3d at 961.

Circuit Judge Berzon concurred because even if admitting the translation was an error it was harmless in light of the other evidence in the record. However, the judge made a detailed examination of the officer's foreign language capabilities. He disagreed with the majority when it did not examine this factor extensively, but rather deferred to the trial judge's fact finding that the officer was an adequate translator.


Federal Rules of Evidence