Rejecting "Language Conduit" Theory For Interpreters Under The Confrontation Clause

Eleventh Circuit panel majority holds that the Confrontation Clause required an interpreter to testify before the defendant's statements made to the interpreter could be admitted; the position is contrary to other circuits, including a recent decision by the Fourth Circuit; nonetheless, the Eleventh Circuit upheld the conviction after concluding that there was no “plain” error after no objection was made at trial, in United States v. Charles, 722 F.3d 1319 (11th Cir. July 25, 2013) (No. 12-14080)

A few weeks ago, on July 12, 2013, the Fourth Circuit held that an interpreter was not required to testify under the Confrontation Clause in order to admit statements made to the interpreter. After all, "The interpreter was nothing more than a language conduit." United States v. Shibin, 722 F.3d 233 (4th Cir. July 12, 2013) (No. 12-4652); see also Prior Inconsistent Statements Provided Through An Interpreter Were Admissible Under The Confrontation Clause. Nearly two weeks later, on July 25, 2013, a divided panel of the Eleventh Circuit took a contrary position.

Trial Court Proceedings

In the Eleventh Circuit case, defendant Charles was prosecuted for knowingly using a fraudulently altered travel document. At his trial, a Customs and Border Protection (CBP) officer testified about the statements made by the defendant at the Miami International Airport as provided by a non-testifying Creole interpreter. The CBP officer "told the jury what the interpreter told him Charles had said." During the interview, the officer asked about discrepancies in the papers she had submitted, and the defendant replied that “the form was already given to her completed” and that “when she sat down [on the plane], she started reading the document and she noticed that the document was illegal because it didn’t fit her profile.” Charles, 722 F.3d at 1321. The jury also heard a stipulation by the parties "that the interpreter was a Creole interpreter, who speaks fluent English and Creole, and had interpreted Charles’s interview with the CBP officer." Charles, 722 F.3d at 1321 n.2. No objection was made under the Confrontation Clause concerning the defendant's inability to cross-examine the interpreter about the defendant's statements. The jury convicted the defendant. For the first time on appeal, the defendant contended her Confrontation Clause rights were violated.

Circuit Analysis

The constitutional challenge was reviewed for plain error which required the circuit to determine whether there was constitutional error. See United States v. Arbolaez, 450 F.3d 1283, 1291 (11th Cir. 2006) ("Under plain error review, an appellate court may not correct an error not raised at trial unless there is (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.") (citation and quotation marks omitted). The panel spent a substantial amount of time reviewing the recent Supreme Court cases under the Confrontation Clause.

First, the panel majority noted that the statements made by the defendant during the interrogation were "testimonial" under the Confrontation Clause since the interpreter’s statements "were specifically obtained for use in a criminal investigation and the fact that the interpreter may be competent does not exempt the interpreter from cross-examination." Charles, 722 F.3d at 1329 (citing United States v. Baker, 432 F.3d 1189, 1204 (11th Cir. 2005) (“Statements taken by police officers in the course of interrogations are definitively testimonial”) (quotation marks and emphasis omitted); see also Crawford v. Washington, 541 U.S. 36, 53 n.9 (2004) (noting the “recorded statement, knowingly given in response to structured police questioning, qualifies under any conceivable definition” of testimonial statement)).

The panel majority then identified the different levels of the statements under review:

The only possible out-of-court statements to which the CBP officer could testify to in court are the English language statements of the interpreter. When the CBP officer asked questions in English, the interpreter orally translated them into Creole for Charles. Charles then spoke to the interpreter in Creole, who in turn orally translated Charles’s statements from Creole into English for the CBP officer. The CBP officer only heard Charles speak in Creole and never heard any statements from Charles in English. Thus, during the trial when the CBP officer testified as though the statements were made by Charles in English, he was actually testifying to the out-of-court statements of the interpreter. In other words, the interpreter made the testimonial statements to the CBP officer, and, accordingly, is the declarant of the English-language statements that the CBP officer heard and testified to at trial.

Charles, 722 F.3d at 1324 (emphasis in original).

Distinguishing Translations From Interpretations

The panel majority also distinguished between a translation, which entails a literal correspondence between the spoken words, and interpretation, which does not. Interpreters will focus on the meaning of the statements conveyed which may deviate from the literal words used: "Not only does a language interpreter face obstacles in trying to convey the semantic meaning of a speaker’s words but language interpretation necessarily requires the interpreter also to understand 'the contextual, pragmatic meaning of specific language' so that 'much of the information required to determine the speaker’s meaning is not contained in the words of the speaker, but instead is supplied by the listener.'" Charles, 722 F.3d at 1325 (quoting Muneer I. Ahmad, Interpreting Communities: Lawyering Across Language Difference, 54 UCLA L. Rev. 999, 1036 (2007)).

Rejecting "Language Conduit" Theory

The panel majority found prior cases inapplicable which permitted interpreter statements to be admitted under the hearsay party authorization rules, including FRE 801(d)(2)(C) and FRE 801(d)(2)(D), since they did not involve a Confrontation Clause analysis. The panel also rejected that the interpreter was a mere "language conduit" for the defendant. As the panel explained:

In referring to an interpreter as a “language conduit,” the court in Da Silva did so in the context of concluding that an interpreter may be treated as the defendant’s agent, for purposes of the hearsay rules, so long as the interpreter “has no motive to mislead” and there is “no reason to believe the translation is inaccurate.” 725 F.2d at 832; see also Alvarez, 755 F.2d at 860 (finding the reasoning of the Second Circuit in Da Silva regarding the inferred agency between an interpreter and defendant as persuasive). Under these circumstances, the interpreter is perceived as orally translating the words of the defendant competently for purposes of hearsay. Da Silva’s view of an interpreter as a “language conduit,” adopted by our circuit in Alvarez, was premised on the court’s assessment of the interpreter’s reliability and trustworthiness, principles supporting the admissibility of the interpreter’s statements under Rules 801(d)(2)(C) or (D), but having no bearing on the Confrontation Clause.

Charles, 722 F.3d at 1327 (citing United States v. Alvarez, 755 F.2d 830, 860 (11th Cir. 1985); United States v. Da Silva, 725 F.2d 828, 832 (2d Cir. 1983)).

The panel also noted that the purpose of the Confrontation Clause was to allow cross-examination to test the reliability of the testimonial statements. The panel majority noted that while recent Supreme Court cases "leave no doubt that not even the highest degree of reliability of a testimonial statement will satisfy the Confrontation Clause, we note that the process of language interpretation is arguably much less 'reliable' than the process of scientific forensic laboratory testing, which the Supreme Court was not persuaded to exempt from confrontation. As one scholar has succinctly put it, 'not only is language inherently ambiguous, so, too, is interpretation.'" Charles, 722 F.3d at 1329 n.13 (quoting Muneer I. Ahmad, Interpreting Communities: Lawyering Across Language Difference, 54 UCLA L. Rev. 999, 1036 (2007)).

Consequently, the panel concluded that constitutional error resulted by the introduction of the defendant's statements through a non-testifying interpreter. The Confrontation Clause required that the defendant be permitted to cross-examine the interpreter about the statements.

Assessing Plain Error

Under plain error analysis, having determined that there was "error," the next question was whether the error was "plain". The circuit was unable to conclude that the error was “plain” given the absence of “binding” circuit or “Supreme Court precedent clearly articulating that the declarant of the statements testified to by the CBP officer is the language interpreter.” As a result, the panel affirmed the defendant's conviction.

Special Concurrence

Circuit Judge Stanley Marcus specially concurred in the judgment. He concluded that the conviction could be affirmed based on the determination that there was no plain error without reaching the constitutional issues:

I concur in the judgment reached by the panel majority. There was no plain error in this case, so we must affirm Charles’s conviction. However, I write separately because I believe it unnecessary to decide a novel and difficult question of constitutional law in an area where the Supreme Court’s jurisprudence is still evolving. The majority makes a serious and substantial argument for its position, and it may well be right. But I would wait until the necessity of deciding the question sharpens both the adversarial presentation of the issue and our decision-making process.

Charles, 722 F.3d at 1332 (Marcus, J., specially concurring).

Summary

In the span of only a few weeks, two circuits have taken contrary positions on whether statements may be admitted through a non-testifying interpreter under the Confrontation Clause. In addition to the Fourth Circuit, the Ninth Circuit has also applied the "language conduit" theory. See United States v. Romo-Chavez, 681 F.3d 955 (9th Cir. 2012); see also Whether A Translation Is A "Mere[] ... Conduit" For A Declarant's Statement?; United States v. Hieng, 679 F.3d 1131 (9th Cir. 2012); see also The Confrontation Clause and Admission Of Statements Involving A Non-Testifying Interpreter. Unless the Supreme Court steps in to address this issue, which appears unlikely at this point, whether an interpreter is required to testify in a criminal case will turn on (1) a showing that the interpreter was a "mere language conduit" and (2) the circuit in which the statements are admitted.

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