Hearsay and Confrontation Issues with Translated Statements
When the state seeks to admit statements made to a witness through a translator, several thorny and unsettled issues come up in regards to both hearsay and confrontation. The following is a guide for how the law currently stands and where the best arguments can be made.
I. When someone testifies about what another person said through a translator, it is double hearsay.
There is at least one crystal clear area of this law. The Oregon Supreme Court held in State v. Rodriguez-Castillo, 345 Or 39 (2008) that when someone testifies about what another person said through a translator for the truth of the matter asserted, it is double hearsay and the statements of both the declarant and the translator must meet some exception. OEC 805. In that case, the alleged victim of sexual abuse made a report to police officers using a bilingual middle school tutor as an interpreter. The court rejected the idea that the interpreter was merely a "language conduit" as well as the idea that the interpreter was acting as the declarant's agent. Rather, by allowing the officer to testify about what the translator said the victim said, two levels of hearsay were admitted.
II. The translator's statements may be admissible under the residual exception. But only if the State can establish that (1) the translator was qualified to interpret word for word and (2) that he was actually translating word for word.
The state argued in Rodriguez-Castillo that the residual exception should apply to the translator's statements, though the Supreme Court held that the argument was not preserved. Nonetheless, the Court of Appeals analysis of the issue is helpful, even if it is not currently good law.
The residual exception requires as a threshold matter that the hearsay statements have "equivalent circumstantial guarantees of trustworthiness," which the Court of Appeals agreed could only effectively be provided by evidence regarding the interpreter's qualifications as an interpreter. State v. Rodriguez-Castillo, 210 Or App 479, 494 (2007) (en banc). The majority held that there was sufficient evidence of the interpreter's qualifications by showing:
- Spanish was his first language
- He had spoken Spanish and English since he was a young child
- He speaks Spanish "quite well"
- He is employed as a bilingual tutor
- He testified that he believed he interpreted the interview accurately
- His testimony was consistent with the victim's
Chief Judge Brewer disagreed in a dissent and argued that in order to establish trustworthiness, the state would need to introduce evidence that the interpreter at least met the requirements of a "qualified interpreter" for court translations under ORS 45.275, if not those required of a certified interpreter. Id. at 528-530. That statute defines "qualified interpreter" as:
a person who is readily able to communicate with the non-English-speaking person and who can orally transfer the meaning of statements to and from English and the language spoken by the non-English-speaking person. A qualified interpreter must be able to interpret in a manner that conserves the meaning, tone, level, style and register of the original statement, without additions or omissions. "Qualified interpreter" does not include any person who is unable to interpret the dialect, slang or specialized vocabulary used by the party or witness.
Since translation is typically conducted simultaneously in person or over the phone, it would be reasonable to require qualifications equivalent to those required for simultaneous translators in court. In particular, the state should need to prove that the interpreter was qualified to translate the particular dialect the declarant spoke in, since nuances of meaning can be easily lost in translation.
Even if the translator is qualified as a translator, Chief Judge Brewer argued that evidence regarding the method used by the interpreter - simultaneous, consecutive, summary or paraphrase - is needed to establish trustworthiness. Without the interpreter's testimony about the method used, it is impossible to know whether he was translating word for word or paraphrasing and it is thus impossible for the jury to properly evaluate the hearsay statements.
If the state does show the interpreter was qualified as an interpreter of the language and dialect used and that the translator was translating word for word, the statements would likely be admissible under the residual exception. Admitting sufficient evidence of this trustworthiness without the translator's testimony is unlikely in most circumstances.
The courts have interpreted Article 1, section 11 as requiring hearsay evidence admitted without the declarant testifying to meet the Roberts test, as stated in Ohio v. Roberts, 448 U.S. 56, 66 (1980). State v. Cook, 340 Or. 530, 540 (2006). This test requires that 1) the declarant be unavailable, and 2) the statement have "adequate indicia of reliability." Id. (quoting Roberts at 66). One adequate indicium of reliability is that the statement falls within a "firmly rooted hearsay exception."
The only relevant hearsay exception is the residual exception, which is by definition not firmly rooted, since it is ad hoc. Idaho v. Wright, 497 U.S. 805, 817-18 (1990). Rather, the state would have to show that the statement has particularized indicia of reliability. As under the residual exception analysis, the only way to establish reliability would be to introduce evidence about the translator's qualifications, which would probably require the interpreter to testify as to his qualifications.
IV. The translator's statements are testimonial and inadmissible without an opportunity to cross-examine.
The sixth amendment requires that no testimonial hearsay statements be admitted without an opportunity to confront the declarant at trial unless the declarant is unavailable and there was a prior opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36, 68-69 (2004).
The court declined to clearly define "testimonial," but has provided several formulations of testimonial statements:
- "Ex parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially"
- "Extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"
- "Statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
Id. at 51-52.
In Davis v. Washington, 547 U.S. 813, 822 (2006), the court added that the purpose behind the person questioning the declarant is relevant and that statements are testimonial when "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." The court clarified in Michigan v. Bryant, ___ U.S. ___, 131 S.Ct. 1143 (2011) that the parties' purposes are determined objectively and that the inquiry is what purpose a reasonable participant in the circumstances would have.
In most cases, police officers use interpreters when taking a victim's or witness' statements well after the events took place. Since in these situations there is no ongoing emergency, the sole, objective purpose of a police interview is to discover what happened, to establish or prove past events in any trial regarding the events described. That is the only reason a reasonable police officer would conduct an interview and is the only reason an officer would call for an interpreter. Under Davis and Bryant, the translator's statements are therefore testimonial and inadmissible without the interpreter's testimony at trial.
Note that the Court of Appeals has considered this federal confrontation argument, but disposed of it as harmless error in the case at hand. State v. Sierra-Depina, 230 Or App 86 (2009). No court seems to have confronted the question of whether or not translated statements in a police interview are "testimonial."