EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, February 6, 2011

That's One Interpretation: NJ Court Finds Confrontation Clause Doesn't Cover "Interpreters" Of Statements To Police

The Sixth Amendment's Confrontation Clause provides that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.

Pursuant to the Supreme Court's opinion in Crawford v. Washington, the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. But let's assume that the declarant makes a statement to the police and does not speak English. And let's assume that the police get an interpreter to translate the declant's statements to them. If the police officer testifies concerning these translated statements, does the interpreter have to testify at trial? According to the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Venable, 2011 WL 10053 (N.J.Super.A.D. 2011), the answer is "no."

In Venable, Reginald Venable was convicted of first degree armed robbery, second degree possession of a handgun for an unlawful purpose, and third degree unlawful possession of handgun without a permit. At trial, a police officer testified regarding statements that the alleged victim made to him through an interpreter.  The alleged victim also testified at trial, identified defendant as the person who robbed him, and was thoroughly cross-examined by defense counsel. The interpreter, however, did not testify.

After he was convicted, Venable appealed, claiming that the interpreter's failure to testify violated his rights under the Confrontation Clause. The court disagreed, finding that the interpreter's

involvement was limited to assisting the victim, who did not speak English, in reporting the event to a police officer who happened to be driving nearby. The concerns articulated by the Court in Crawford are not applicable to this individual.
Our conclusion is consistent with decisions reached by a number of federal courts that have examined this question. See, e.g., United States v. Vidacak, 553 F.3d 344, 352 (4th Cir.2009) (concluding that the translator at defendant's immigration interview “was merely a ‘language conduit’ and not a declarant”);United States v. Cordero, 18 F.3d 1248, 1252 (5th Cir.1994) (upholding the admission of testimony by DEA agent as to defendant's statements made through an interpreter); United States v. Lopez, 937 F.2d 716, 724 (2d Cir.1991) (upholding the admission of a translated statement where defendants' offered “no reason to doubt the accuracy of [the] translation”). See also Biunno, Current N.J. Rules of Evidence,comment on N.J.R.E. 604 (2008) (“The interpreter's role is merely that of a conduit from the primary witness to the trier of fact.”).


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