The Confrontation Clause and Admission Of Statements Involving A Non-Testifying Interpreter

Ninth Circuit notes that the Confrontation Clause cases have not considered “the question whether, when a speaker makes a statement through an interpreter, the Sixth Amendment requires the court to attribute the statement to the interpreter”; the failure to call the interpreter to testify at trial did not violate the Confrontation Clause where nothing indicated that the interpreter served as “anything other than a language conduit” or had a motive to mistranslate, in United States v. Hieng, 679 F.3d 1131 (9th Cir. May 11, 2012) (No. 09-10401)

The Ninth Circuit recently considered a Confrontation Clause challenge to the admission of a defendant’s post-arrest statements made with the assistance of an interpreter without calling the interpreter to testify at trial.

In the case, defendant Hieng was prosecuted for his role in manufacturing marijuana. At trial, the government admitted the defendant’s post-arrest statements denying knowledge of marijuana in the house and that “if he had known there was marijuana at the house, he would have charged more than $800 per month.” Hieng, 679 F.3d at 1137. The statements were provided through a Cambodian interpreter who was not called to testify at trial. The trial court noted that the interpreter could be called if the defendant disputed the interpretation. After the defendant’s conviction, for the first time on appeal he claimed the failure to call the interpreter violated his Confrontation Clause rights.

The Ninth Circuit disagreed and found no plain error. The Ninth Circuit noted that there was no showing that the interpreter was anything other than a “language conduit”:

[Defendant] Hieng has not identified anything in the record suggesting that [Cambodian interpreter] Lim was anything other than a language conduit. The record indicates Lim was a highly competent interpreter. He interpreted not only at the interview in dispute, but also during trial and in private meetings between Hieng and his attorney. There is no indication that Lim had any motive to mistranslate. The district court properly treated Lim as a mere language conduit for Hieng.
Hieng, 679 F.3d at 1139.

The Ninth Circuit noted its prior precedent in United States v. Nazemian, 948 F.2d 522, 525-26 (9th Cir. 1991) (“If the statements properly are viewed as Nazemian's own, then there would be no confrontation clause issue since Nazemian cannot claim that she was denied the opportunity to confront herself.”). The defendant contended that Nazemian was no longer applicable based on the Confrontation Clause cases under Crawford v. Washington, 541 U.S. 36 (2004) (holding that "testimonial" statements of an unavailable witness violated the Confrontation Clause unless there was a prior opportunity for cross-examination), and its progeny.

In reviewing the recent Confrontation Clause cases, the panel noted that none “address the question whether, when a speaker makes a statement through an interpreter, the Sixth Amendment requires the court to attribute the statement to the interpreter.” Hieng, 679 F.3d at 1140. Further, the cases were “not clearly irreconcilable”:

We held in Nazemian that whether the interpreter must be considered a declarant, rather than a language conduit, is a threshold inquiry, and that confrontation concerns do not even arise if the statement may be fairly attributed directly to the speaker. 948 F.2d at 525-26. If a court were to hold that the statement must be attributed to the interpreter, it would, under Crawford, ask whether the statement, as applied to the interpreter, was testimonial. If so, the statement could not be admitted without opportunity for confrontation of the interpreter. But if the court determines that a statement may be fairly attributed directly to the original speaker, then the court would engage in the Crawford analysis only with respect to that original speaker. Where, as here, that speaker is the defendant, the Sixth Amendment simply has no application because a defendant cannot complain that he was denied the opportunity to confront himself.
Hieng, 679 F.3d at 1140. Nonetheless, the circuit acknowledged “that there is some tension between the Nazemian analysis and the Supreme Court’s recent approach to the Confrontation Clause”:

We conclude that the Court’s recent Confrontation Clause cases provide no clear guide with respect to the interplay, if any, between the Confrontation Clause and the law of evidence. Even if there is some tension, our approach to interpreted statements is not clearly inconsistent with the Crawford line of cases. Without a further pronouncement from the Court, we conclude that Nazemian remains binding in this circuit.
Hieng, 679 F.3d at 1141.

The Hieng case highlights an interesting Confrontation Clause issue. In the absence of questions about the interpretation that is provided, can constitutional concerns be raised when the interpreter is nothing more than a “language conduit”?


Federal Rules of Evidence