Are Translated Statements Admissible in California ?
In Correra v. Superior Court (2002) 27 Cal.4th 444, the Supreme court considered whether the trial court properly allowed police officers to testify at a preliminary hearing regarding extrajudicial statements made by a Spanish-speaking victim and by another Spanish-speaking witness that were translated into English by two bystanders.
The defendant claimed this testimony constituted inadmissible hearsay. (Ibid.)
The Supreme Court rejected the defendant's argument that the translators' participation in that case interposed a "layer of hearsay," and held that "a generally unbiased and adequately skilled translator simply serves as a 'language conduit,' so that the translated statement is considered to be the statement of the original declarant, and not that of the translator." (Ibid.)
The Correra court explained the manner by which a trial court should determine whether to admit such translated statements:
"The language-conduit theory calls for a case-by-case determination whether, under the particular circumstances of the case, the translated statement fairly may be considered to be that of the original speaker. We agree with this theory and believe that the measured approach adopted by the Ninth Circuit Court of Appeals in U.S. v. Nazemian (9th Cir. 1991) 948 F.2d 522, 525-527 (Nazemian) should be adopted to ensure that only translated statements fairly attributable to a declarant will be admitted." (Correra, supra, 27 Cal.4th at p. 457.)
The Correra court noted that pursuant to Nazemian, a court should consider factors such as "which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter's qualifications and language skill, and whether actions taken subsequent to the conversation were consistent with the statements as translated." (Correra, supra, 27 Cal.4th at p. 458, quoting Nazemian, supra, 948 F.2d at p. 527.) In applying these factors, the Correra court stated:
"We observe that the translators were not 'supplied' by the police, but (apparently being unknown both to the declarants and the police officers, as well as to the defendant) just happened to be on the scene. Their neutrality is evident from the record, and there is no contrary suggestion of a motive to mislead or distort. The investigating officers observed the process of translation and did not report any apparent hesitation or difficulty in communicating, or any bias. In addition, evidence produced during the investigation tended to corroborate the substance of the translated statements. Moreover, the translators appeared and testified at the preliminary hearing with respect to the course of the translations, their neutrality, and their language skills, and ample evidence supports the conclusion that they were skilled in English and Spanish and were capable of providing accurate translations." (Correra, supra, 27 Cal.4th at pp. 466-467.)
The court in U.S. v. Martinez-Gaytan (5th Cir. 2000) 213 F.3d 890, 891 (Martinez-Gaytan), applied Nazemian in reversing the trial court's admission of purported translations of statements of the defendant. In Martinez-Gaytan, federal agents at a border crossing searched a car the defendant was driving as he attempted to enter the United States. (Ibid.)
The agents found approximately 75 pounds of marijuana hidden in the vehicle's gas tank. (Ibid.)
The defendant was detained and interviewed by a federal agent. One of the inspectors who worked at the border crossing acted as a translator. (Ibid.)
The defendant purportedly said that he had picked up the vehicle in Mexico, that he knew the vehicle was "loaded," and that he was going to be paid $ 800 to drop the vehicle in the United States. (Ibid.)
The inspector drafted a synopsis of defendant's alleged answers in English, but the defendant refused to sign it.
Commenting on this police procedure, the Martinez-Gaytan court observed, "Obviously, the sensible course of action in this case would have been for the inspector to present Appellant with a confession written in Spanish, which Appellant presumably would have understood, and which could have been translated at trial if necessary." (Martinez-Gaytan, supra, 213 F.3d at p. 891, fn 1.)
At a pretrial suppression hearing before a magistrate judge, the defendant objected to all testimony by the agent concerning what the defendant had allegedly said in Spanish during the interview, on the ground that the testimony was hearsay. (Martinez-Gaytan, supra, 213 F.3d at p. 891.)
The inspector who had translated during the interview of the defendant was not called as a witness at the hearing. (Ibid.) The magistrate judge denied the motion to suppress the agent's testimony, and the district court affirmed that ruling. (Ibid.)
On appeal, the defendant claimed that the inspector'sfailure to testify at the suppression hearing rendered the agent's statements about the confession unreliable hearsay, and that the admission of those statements violated his rights under the Confrontation Clause. (Martinez-Gaytan, supra, 213 F.3d at p. 892.)
Applying the four Nazemian factors discussed in Correra, the Martinez-Gaytan court concluded:
"Here, the Government supplied the interpreter. Although we presume no motive to mislead or distort, we note that the inspector's absence from the hearing and a lack of other evidence about him left the district court unable to determine the inspector's Spanish fluency. Moreover, Appellant refused to sign any confession despite having ostensibly just confessed to the inspector. Thus, given the current record, the first, third, and fourth Nazemian factors all caution against treating the inspector as a language conduit." (Martinez-Gaytan, supra, 213 F.3d at pp. 892-893.)
In vacating the district court's order denying the suppression motion, the Martinez-Gaytan held, "The district court . . . needs to reconsider its suppression ruling with the benefit of a fuller record that contains testimony from the inspector." (Martinez-Gaytan, supra, 213 F.3d at p. 893.)
In Correra, the California Supreme Court stated that it agreed with the Martinez-Gaytan court's holding that "'where the particular facts of a case cast significant doubt upon the accuracy of a translated statement, the translator or a witness who heard and understood the untranslated statement must be available for testimony and cross-examination at the . . . hearing before the statement can be admitted.' " (Correa, supra, 27 Cal.4th at p. 459, quoting Martinez-Gaytan, supra, 213 F.3d at p. 891; accord Nazemian, supra, 948 F.2d at p. 527, fn. 7 "Where translation is needed in the course of an open investigation or interrogation following arrest, there is no reason why the interview cannot be recorded and/or the translation cannot be conducted by a certified translator who can be available to testify at trial".)