What happens when a defendant feels the legal translation provided by an interpreter of his or her statements to officials was incorrect? Can a criminal defendant confront and cross-examine the interpreter who provided a translation of his or her out-of-court statements?
This is a very complicated issue that further illustrates the criticality of legal translations. Simply said, the language translation is complex because often there are no exact words or phrases in the target language to match what was said or written in the original language. The job of a translator is to seek to understand the original statement and transform it to as close of a match as possible in the target language. Unfortunately, there’s significant room for discretion, and depending on the translator’s expertise in the languages, customs, and laws at play—it’s not uncommon for translations to be inaccurate.
Consider a simple example. A non-English speaking person is detained at the border. A government-provided translator interprets official questioning between the person and border patrol. At a court hearing, the border patrol officer provides testimony including what the interpreter reporter the detainee had said. Can the detainee cross-examine the interpreter? Maybe.
It depends on whether or not the interpreter’s statements are considered hearsay. If they are, then the Confrontation Clause provides rights to the defendant to confront and cross-examine the person making the statements—in this case, the interpreter.
Hearsay is defined by the Federal Rules of Evidence (FRE) as a statement that the declarant does not make while testifying and that a party offers evidence to prove the truth of the matter asserted in the statement. The FRE states hearsay has the following four components:
- An oral or written assertion or nonverbal conduct that the person intended as an assertion.
- A “declarant” is “the person who made the statement.”
- The statement must be made out of court.
- The statement must be offered to prove the truth of the matter asserted in the statement.
Interestingly, the complication in this matter becomes the determination of which person is deemed the declarant.
- If the interpreter is deemed to be simply a “language conduit” of the defendant, the role of the declarant rests on the defendant, and the defendant cannot cross-examine himself or herself. In this situation, the court determines that the interpretation service is a straightforward word-for-word approach not subject to discretionary choices in words or phrases. The interpreter is considered in the same light as translation software would be.
- In other situations, the interpreter has been labeled the declarant, making his or her interpretation of the defendant’s words be hearsay, and thus subject to cross-examination. These decisions respect the complicated and discretionary nature of translation and provide that the interpreter has the ability to place his or her point of view into the translation itself.
The following examples show the disparate views of the courts on the interpreter’s role:
- In the 1973 case of United States v Ushakow, the Ninth Circuit decided that a defendant’s statements translated by a foreign-language interpreter are not hearsay but did not provide additional clarification about their decision.
- In United States v Da Silva, the Second Circuit used Ushakow as a baseline and reasoned that translations are attributable to the defendant as his or her own statements are not considered hearsay.
- In United States v Charles, the Eleventh Circuit determined that an interpreter is a declarant of out-of-court statements, so in that case the police officer’s testimony concerning an interpreter’s out-of-court statement was hearsay and the interpreter could be cross-examined.
In all these cases, it’s important to note that no consideration was made for whether the defendant or the government official provided for the interpretation services.
What does this mean for your legal translation?
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