Translated Recordings Under the Confrontation Clause; Application Summary

“Translated Recordings Under the Confrontation Clause; Application Summary” is the third of a series of three consecutive articles dealing with specific application of the confrontation clause are interpreted in Crawford to Williams/Clark. This article address issues arising when recordings of any kind, whether or not also photographic, are of communications in a language other than English translated at some point into English and presented as evidence in a criminal trial against the criminal defendant. This third article also contains an up-to-date confrontation clause “Testimonial” “Nontestimonial” Crawford to Williams/Clark “Application Summary”. Initially, given that a translation of an out-of-court statement clearly at a minimum raises confrontation clause concerns, avoidance of any real confrontation clause issue should be government’s first priority. With respect to undercover operations and similar field conduct, sound recordings should be obtained if at all feasible. With respect to suspect interrogation, sound recording have been advocated for many years for many unrelated reasons apart from its impact of any confrontation clause concerns. If there is a sound recording, regardless of its derivation, if the criminal defendant were to object to a translation of the communications contained thereon, any competent person can be called as a witness at the accused’s trial, under oath, subject to cross-examination, to either translate the sound recording or clearly preferably simply authenticate as accurate and complete the translation transcript of the communications contained on the sound recording. In addition, in the context of a suspect interviewed after arrest, the government might consider accompanying Miranda warnings presented in a foreign language with a request in addition for the suspect to waive any right the suspect may have with respect to subsequently made statements under the confrontation clause arising from translation of the suspect’s subsequently made statements. With respect to communications not sound recorded offered by the prosecution in a criminal case against the accused that were the subject of translation, a translation not possessing sufficient trustworthiness concerns to bar the translated statement upon a hearsay and Fed.R.Evid. 403 objection, lower courts display a true conflict when it comes to the confrontation clause. In the red corner stands United States v. Orm Hieng, 679 F.3d 1131 (9th Cir. 2012), holding that pursuant to the “language conduit” principle, there is only one level of potential hearsay to consider, i.e., the interpreter’s statements are directly attributable to the accused. No real confrontation clause concern arises with respect to the accused’s not hearsay by definition “admission of a party opponent”, Fed.R.Evid. 801(d)(2)(A), i.e., the defendant cannot complain that he was denied an opportunity to confront himself. In the blue corner, stands United States v. Charles, 722 F.3d 1319 (11th Cir. 2013), holding that regardless of the fact that application of either a “language conduit” or “admission of a party approach” might result in the overruling of a hearsay objection to the translation itself of a communication not sufficiently challenged as to trustworthiness, pursuant to Crawford to Williams/Clark the translation of the out-of-court statement itself nevertheless qualifies as an independent hearsay statement offered for its truth, Fed.R.Evid. 801(a)-(d), raising confrontation clause concerns, i.e., the translation may very well be “testimonial”. “We recently concluded, for similar reasons, that an oral interpreter was ‘the declarant of the English-language statements’ when a witness repeated the interpreted conversation at trial. United States v. Charles, 722 F.3d 1319, 1324, No. 12–14080, 2013 WL 3827664 (11th Cir., July 25, 2013). To limit the Confrontation Clause to express hearsay statements would allow the Government to skirt the Clause's requirements. We doubt the prosecution in Bullcoming or Melendez–Diaz could have avoided the Confrontation Clause simply by admitting the numeric or chemical results of the blood-alcohol or cocaine tests without an analyst's certification about how he arrived at those results. See Bullcoming, 131 S.Ct. at 2717 (concluding that allowing disallowing sworn statements but allowing unsworn statements ‘would make the right to confrontation easily erasable’); Williams v. Illinois, –––U.S. ––––, 132 S.Ct. 2221, 2276, 183 L.Ed.2d 89 (2012) (Kagan, J., dissenting) (observing the Bullcoming decision would not have allowed ‘the laboratory to file the selfsame report without the oath’). As the Court said in Melendez–Diaz, the certificates of analysis contained ‘the precise testimony the analysts would have been expected to provide if called at trial.’ Melendez–Diaz, 557 U.S. at 310, 129 S.Ct. 2527. If, instead of introducing the transcripts, the Government had called the translator to interpret the audio recordings to the jury, the testimony would have differed little from the transcripts. So the translator's implicit representation that the transcripts were correct qualifies as a hearsay statement for purposes of the Confrontation Clause. Next, of course, we must ask if this statement is testimonial. We do not know when or why the translator prepared the transcripts, but we would assume he or she did so with an eye toward trial. See Crawford, 541 U.S. at 51–52, 124 S.Ct. 1354 (characterizing as testimonial ‘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’). Furthermore, although the Government's concession is not dispositive, see Gilbert v. United States, 640 F.3d 1293, 1306 n. 14 (11th Cir.2011) (en banc), the Government conceded at oral argument that the transcript was testimonial.” United States v. Curbelo, 726 F.3d 1260, 1273-74 (11th Cir. 2013). Out-of-court translation of out-of-court statement, not sound recorded, offered by the prosecution against the criminal defendant; “ ‘Testimonial’ or ‘Nontestimonial’, That is the Question?” On balance, consistent with how lower courts have responded to confrontation clause arguments asserted with respect to certification of mailing, certification of business records, calibration of radar guns, intoxilyzer certificates, etc., an out-of-court translation of an out-of-court statement should be deemed “nontestimonial”, employing the “language conduit” theory. There is one important caveat. The out-of-court translation must pass as a hearsay matter any objection raised as to the qualifications of the translator, translator impartiality as well as any objections raised as to the accuracy and completeness of the translation. In short, if there is a reasonable probability that the translation upon application of the four factor test, i.e., (1) which party supplied the interpreter, (2) whether the interpreter had any motive to mislead or distort, (3) the interpreter’s qualifications and language skills, and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated, is sufficiently trustworthy, then the translation should be admitted over either or both a hearsay or confrontation clause objection. The outcome of the criminal trial under such circumstances should not be potentially radically altered by unavailability in court of the out-of-court translator. Nor should the translator be required as a witness, if available, absent a sound recording, unless a sufficient showing of lack of trustworthiness in any aspect of the translation has been presented by the criminal defendant. “We agree with the government that the district court did not abuse its discretion in admitting Agent Coughlin's testimony about Salad Ali's statements in the interview because they were admitted only as prior inconsistent statements. And the absence in court of the interpreter did not render the statements inadmissible as hearsay because the interpreter was not the declarant, but only a ‘language conduit.’ United States v. Vidacak, 553 F.3d 344, 352 (4th Cir.2009) (‘[E]xcept in unusual circumstances, an interpreter is no more than a language conduit and therefore his translation does not create an additional level of hearsay’ (quoting United States v. Martinez–Gaytan, 213 F.3d 890, 892 (5th Cir.2000) (internal quotation marks omitted))). While interpreted testimony might be unusable without the interpreter's presence in a circumstance ‘where the particular facts of a case cast significant doubt upon the accuracy of a translated confession,’ id., no such facts were presented in this case. Indeed, Agent Coughlin testified without contradiction that Salad Ali did not have any difficulty understanding the questions.” United States v. Shibin, 722 F.3d 233, 248 (4th Cir.2013).