Notable Petition for Cert. - Interpreters and the Confrontation Clause
by: Aalvarez • June 4, 2016 • no comments
A notable petition for cert. has been filed with the U.S. Supreme Court. The case is Ye v. United States and the question is: Whether the Confrontation Clause permits the prosecution to introduce an out-of-court, testimonial translation, without making the translator available for confrontation and cross-examination.
In State v. Rodriguez-Castillo, 345 Or. 39 (2008), the Oregon Supreme Court held 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. In State v. Montoya-Franco, 250 Or. App. 665 (2012), the defendant challenged police officer's testimony as hearsay because it was based on a translator's statements. In that case, the court held that the officer's testimony had adequate foundation because the translator's qualifications fulfilled the requirements of Oregon's hearsay exception statute OEC 803(28). The translator was a fluent Spanish speaker, spoke Spanish every day, received a bonus for his Spanish skills and frequently served as an interpreter. These qualifications ensured that the interpreter's translation was reliable and trustworthy. Therefore, the admission of the translated statement was not qualitatively different from the admission of the defendant's own statement.
Despite examining an interpreter's statements in the context of hearsay rules and exceptions, Oregon has not yet examined the effect of the federal confrontation clause. For example, in State v. Sierra-Depina, 230 Or. App. 86 (2009), the defendant argued that a defendant's translator's statements are testimonial and inadmissible without the original interpreter's testimony at trial. In that case, the Court of Appeals disposed of the issue on harmless error grounds. Of note however, is this opinion from the Maryland Court of Special Appeals, which relied on Oregon case law and held that an interpreter's statements are testimonial.
Petition for Cert here. Petitioner's reply brief here. Respondent's brief here. Amicus briefs here and here. Look at them. Enjoy them. Use them to preserve the argument now.
