Suppose a person who speaks only Spanish is stopped on suspicion of impaired driving by two officers, Officer A and Officer B. Officer A speaks and understands only English. Officer B is fluent in English and Spanish. Officer B asks the defendant if he has been drinking. The defendant states, in Spanish, that he drank some beer and a little whiskey at a friend’s house. Officer B tells Officer A, in English, what the defendant said. The defendant ultimately is arrested for impaired driving by Officer A. At defendant’s trial on impaired driving charges, only Officer A testifies though Officer B remains employed by the same police department. When the prosecutor asks Officer A what the defendant said after he was stopped, the defendant’s attorney objects on Confrontation Clause grounds. Defendant’s attorney argues that any testimony from Officer A about what defendant said contains two layers of hearsay. First, the statements made by the defendant are hearsay (though they are subject to the hearsay exception in N.C. R. Evid. 801(d) for admissions of a party opponent). Second, the translation of those statements amounts to an out-of-court statement by Officer B, who is not testifying though he is available to do so. Defendant’s attorney asserts that allowing Officer A to testify about what defendant said to Officer B, based on Officer B’s translation of those statements, violates the defendant’s right to confront witnesses against him. The prosecutor asserts that Officer B’s statements do not add an additional layer of hearsay and thus there is no Confrontation Clause concern. Who has the better of these arguments?
Considering a similar objection on evidentiary grounds before the Supreme Court issued its opinion in Crawford v. Washington, 541 U.S. 36 (2004), the North Carolina Supreme Court in State v. Felton, 330 N.C. 619, 633 (1992) analyzed the admissibility of a translated statements under principles of agency based upon an interpreter’s service as a language conduit. The agency/language conduit analysis attributes an interpreter’s statements to the declarant absent circumstances that rebut the presumption that an interpreter is acting as the declarant’s agent. Viewed through this lens, the interpretation of a declarant’s statement by an interpreter considered to be the declarant’s agent does not add an additional layer of hearsay. Thus, the court in Felton held that a law enforcement officer who interrogated a defendant with the aid of an interpreter could testify at trial regarding the defendant’s responses, even though the interpreter herself did not testify, so long as circumstances did not negate the presumption that the interpreter was the defendant’s agent. Felton identified the following factors as tending to refute an inference of agency: (1) a substantial possibility that the interpreter had a motive to misrepresent, such as an interest in shifting suspicion to the accused and away from the interpreter, or (2) a lack of capacity or demonstrated incompetence on the part of the translator. The court explained that “‘[w]here, however, there is no motive to mislead and no reason to believe the translation is inaccurate, the agency relationship may properly be found to exist. In those circumstances the translator is no more than a “language conduit,” . . . and a testimonial identity exists between declarant and translator. . . .’” Id. at 635. Felton also rejected the notion that the selection of an interpreter by law enforcement officers or an interpreter’s employment by a law enforcement agency removes the presumption of agency that arises “when an accused accepts the benefit of the proffered translation to make a voluntary statement.” Id. at 636.
Courts in other jurisdictions have employed a similar analysis both pre- and post-Crawford. See, e.g., United States v. Nazemian, 948 F.2d 522, 526-27 (9th Cir. 1991) (noting that “[w]hile many of the early state cases and a number of contemporary state cases take the position that the statement of an interpreter constitutes inadmissible hearsay . . . all of the federal circuits which have considered the question recently have taken the view that the translator may in some circumstances be viewed as an agent of the defendant, and the translation hence be attributable to the defendant as her own admission”); Hernandez v. State, 662 S.E.2d 325 (Ga. App. 2008) (concluding that, in light of the language conduit rule, the trial court did not abuse its discretion in allowing the jury to hear an out-of-court translation of defendant’s statements); People v. Jackson, 2011 WL 1878794, __ N.W.2d ___ (Mich. Ct. App. May 17, 2011) (concluding that (1) nurse’s reports to officer regarding witness’s hand-signal responses to officer’s questions fell within the language conduit rule and did not constitute an additional layer of hearsay, and (2) defendant did not have a constitutional right to confront nurse because what she reported properly was considered to be the statements of a witness whom defendant had a full opportunity to cross-examine).
Thus, if the declarant whose statement was translated testifies at trial and language conduit principles apply, there is no Confrontation Clause violation. See Jackson, 2011 WL 1878794. And when the defendant is the declarant, admission of his or her statements does not implicate the Confrontation Clause because a defendant has no right to confront himself. See, e.g., Vasquez v. Kirkland, 572 F.3d 1029, 1037 (9th Cir.2009) (“cases involv[ing] the use of a defendant’s own statements against him … implicate a defendant’s Fifth Amendment rights rather than the Sixth Amendment right of confrontation”), cert. denied, ___U.S. ___ , 130 S.Ct. 1086 (January 11, 2010); United States v. Brown, 441 F.3d 1330, 1358-59 (11th Cir.2006) (admission of defendant’s statement did not violate Confrontation Clause); United States v. Lafferty, 387 F.Supp.2d 500, 511 (W.D.Pa.2005) (“Inherent in Justice Scalia’s analysis in the Crawford opinion was the idea that the right of confrontation exists as to accusations of third parties implicating a criminal defendant, not a criminal defendant implicating herself.”).
So, in the scenario above, absent evidence that Officer B was not qualified or competent to interpret defendant’s statements, or that he had a motive to misrepresent the defendant’s responses, the prosecutor has the better of the arguments.