The validity of United States v. Nazemian following Crawford and its progeny: do criminal defendants have the right to face their interpreters at trial?

• Author: Kracum, John

TABLE OF CONTENTS INTRODUCTION I. MIRANDA, NAZEMIAN, AND THE ADMISSIBILITY OF POLICE INTERPRETERS' STATEMENTS A. Miranda v. Arizona and Police Interrogation Through Interpreters B. Nazemian's Solution to the Hearsay/Confrontation Problem II. MODERN CONFRONTATION CLAUSE JURISPRUDENCE A. Crawford v. Washington B. Davis v. Washington C. Melendez-Diaz v. Massachusetts D. Bullcoming v. New Mexico III. ORM HIENG'S ANALYSIS OF POLICE INTERPRETER STATEMENTS ADMISSIBILITY A. Majority's Treatment of Nazemian Post-Crawford B. Judge Berzon's Concurrence CONCLUSION INTRODUCTION

More than ever before, the U.S. justice system is under pressure to provide competent language interpretation. The U.S. Census Bureau reported that, as of 2010, approximately forty million foreign-born individuals reside in the United States, (1) an increase of approximately nine million over the same population ten years earlier. (2) Of those forty million residents, approximately one in ten spoke no English, while approximately two in ten did not speak English well. (3) Also in 2010, the federal courts saw a 13.8% increase in the number of annual interpretation events at the district court level, (4) where the court must provide interpreters for all criminal cases and civil cases brought by the United States. (5) Over one-third of those interpretation events took place in the Ninth Circuit, an area bordering Mexico and more impacted by nonnative speakers than the majority of the country. (6)

This need for language interpretation in our justice system is growing alongside an uncertainty about the right to confrontation. The Supreme Court in Crawford v. Washington has labeled as "testimonial" some types of out-of-court statements, ruling that they are no longer admissible in criminal cases without the opportunity for the defendant to cross-examine the declarant. (7) Examples of testimonial statements traditionally include forensic reports, statements made to establish facts, and statements made during police interrogation. (8) Powering the modem understanding of the Confrontation Clause (9) is the Framers' fear that testimony not subjected to "the crucible of cross-examination" may unjustly prejudice a court against a criminal defendant who should have the right to face his accuser. (10)

In its 2012 opinion in United States v. Orm Hieng, the Ninth Circuit Court of Appeals recognized a tricky issue regarding one of those types of testimonial statements--statements made during police interrogation. (11) The court was faced with an instance in which a police officer testified about statements made during the interrogation of a defendant who required the use of an interpreter. (12) The trial court granted a motion to exclude witnesses from the courtroom but allowed the interpreter who assisted in his police interrogation to remain. (13) By doing so, the court implicitly ruled that the interpreter was "not a percipient or fact witness." (14) On appeal, the defendant argued that the interpreter's statements could not be admitted as evidence if the defendant was refused the opportunity to face the interpreter. (15) One can imagine that the Framers' fear, which generated the Confrontation Clause, is especially felt by non-English speaking defendants, who cannot gain firsthand knowledge of either the statements their interpreters relay to their questioners during police interrogation or the statements to which the police officers testify at trial. However, the majority of the Ninth Circuit panel, relying on its analysis in United States v. Nazemian, (16) found that, so long as the interpreter in question acted as a mere language conduit, the defendant himself was the declarant of the statements, and he therefore had no constitutional right to confront his interpreter. (17)

In a concurring opinion, however, Judge Berzon challenged the validity of Nazemian's language conduit test. (18) First, Judge Berzon questioned the "unity between hearsay concepts and Confrontation Clause analysis" on which the Nazemian holding was founded. (19) Second, Judge Berzon pointed out dissonance between Nazemian's holding and the Supreme Court's reasoning in both Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico}0 Based on those two considerations, Judge Berzon was unwilling to accept silently the majority's Confrontation Clause analysis.

The purpose of this Comment is to question Nazemian's continued validity based on the two criticisms offered by Judge Berzon's concurrence in Orm Hieng. Part I describes the process by which Nazemian's language conduit test has allowed the admissibility of statements made through an interpreter during police interrogation. Part II outlines the current state of Confrontation Clause jurisprudence based on several recent Supreme Court opinions. Finally, Part III considers both the majority and concurring analysis of the confrontation issue in Orm Hieng, referencing the evolving Confrontation Clause doctrine and the development of that doctrine in the area of forensic report admissibility. By comparing Confrontation Clause doctrine regarding forensic reports to the issue in Orm Hieng, this Comment argues that the purpose of police interrogation, the practical effect of confrontation, and the irrelevance of any perceived quality of witnesses suggest that police interpreters should be subject to confrontation. Interpreter confrontation is relevant in a country where over three million people cannot understand English and where interpreters are used 350,000 times each year in its courts. (21) The issue of Nazemian's continued application may reemerge in en banc review of a future case.

1. MIRANDA, NAZEMAN, AND THE ADMISSIBILITY OF POLICE INTERPRETERS' STATEMENTS

   1. MIRANDA V. ARIZONA AND POLICE INTERROGATION THROUGH INTERPRETERS

      A suspect of a criminal investigation has the right to refuse to answer questions during custodial interrogation by police. (22) Miranda v. Arizona guaranteed that right to criminal suspects by requiring that police employ specific safeguards before beginning a custodial interrogation: a warning that the suspect has a right to remain silent; a warning that any statement the suspect makes may be used against that suspect in court; and a disclosure that the suspect has a right to a retained or appointed attorney. (23) Only upon a waiver of those rights made "voluntarily, knowingly and intelligently" may police obtain statements admissible in court. (24)

      Once a voluntary, knowing, and intelligent waiver of the right to remain silent is made, statements made during interrogation can be used as evidence against that suspect at trial. (25) Typically, the interrogating police officer enters such evidence as testimony. (26) This is the case even when the interrogation requires an interpreter. (27) However, this method of providing evidence creates a hearsay problem when an interpreter is required. The Federal Rules of Evidence define hearsay as "a person's oral assertion, written assertion, or nonverbal conduct ... intended ... as an assertion" made outside of the current tribunal and offered to prove that the assertion is true. (28) Unless such a statement is excluded from or falls within an exception to the hearsay rule, it is inadmissible in court. (29)

      One exclusion from the hearsay rule provides that a statement made by a party and offered against that party at trial is not hearsay. (30) Based on that exclusion, statements made by a criminal defendant during police interrogation are not hearsay because those statements were made by the defendant and are offered against the defendant at trial. (31) When an interpreter is used in the process of the interrogation, however, the police officer acting as a witness at trial does not testify about the defendant's statements--he testifies about the interpreter's statements. In that instance, the hearsay exclusion that allows testimony about statements made during police interrogation may or may not apply.

      Prior to 2004, there was room to argue that the hearsay problem created a Confrontation Clause issue as well. (32) Before the Supreme Court altered the Confrontation Clause doctrine with its opinion in Crawford, the Court interpreted the Confrontation Clause to give criminal defendants the right to confront any declarant making statements against them by cross-examining that declarant at trial, unless the statements made by that declarant showed "particularized guarantees of trustworthiness" or fell within a "firmly rooted hearsay exception." (33) Because no hearsay exception applied to an interpreter's statements, courts were left with the ambiguous question of whether the interpreter's statements showed particularized guarantees of trustworthiness. It was this area of ambiguity that the Ninth Circuit attempted to resolve with its opinion in United States v. Nazemian, (34)

   2. NAZEMANS SOLUTION TO THE HEARSAY/CONFRONTATION PROBLEM

      The Ninth Circuit's opinion in Nazemian attempted to clarify the question of whether statements made by interpreters in police interrogations qualify as hearsay and are subject to the Confrontation Clause. (35) The defendant in Nazemian was charged with conspiracy to possess heroin with intent to distribute, among other charges. (36) The defendant argued that statements he made to a DEA agent were inadmissible hearsay and that admitting the statements violated the Confrontation Clause because a third-party interpreter, who did not testify at trial, translated the statements. (37)

      The Ninth Circuit panel identified a threshold question that controlled both the Confrontation Clause analysis and hearsay analysis: Should the statements in question be attributed to the interpreter or to the defendant? (38) If the defendant were treated as the declarant, the statements would fit into the same hearsay exclusion as noninterpreted statements during police investigation. (39) Likewise, the Confrontation Clause problem would vanish; not only would...