THE AMBIGUITY OF LANGUAGE AND INTERPRETATION: SIXTH AMENDMENT RIGHT TO CONFRONT THE INTERPRETER IN UNITED STATES V. CHARLES

THE AMBIGUITY OF LANGUAGE AND INTERPRETATION: SIXTH AMENDMENT RIGHT TO CONFRONT THE INTERPRETER IN UNITED STATES V. CHARLES Introduction Charles, a Haitian national who does not speak English, arrived in the United States and presented a fraudulently altered travel document to the Customs and Border Protection (CBP) officer. 1 Another CBP officer interrogated Charles through the use of an over-the-phone interpreter to translate from English to Creole and vice versa. 2 During trial, the interrogating officer testified to what the interpreter told him Charles had said during the interrogation in order to prove Charles s knowledge that she used a fraudulently altered travel document. 3 The interpreter was not called to testify. 4 Charles was convicted in the District Court for knowingly using a fraudulently altered travel document in violation of 18 U.S.C. 1546(a). 5 On appeal, Charles argued that the admission of the interrogating officer s testimony violated her Sixth Amendment Confrontation Clause rights under the framework set forth in Crawford v. Washington. 6 The Eleventh Circuit Court of Appeals held that the interpreter s statements to the interrogating officer were testimonial and Charles had a right to confront the interpreter, but concluded that this error was not plain, and therefore affirmed the District Court s conviction. 7 United States v. Charles raises several important issues regarding the scope of the Confrontation Clause. 8 The primary issue presented in the case is whether the Confrontation Clause requires an interpreter to testify during trial and be subject to cross-examination prior to admitting the defendant s statements made to the interpreter. 9 This is an important case that presents an opportunity for the Supreme Court to further clarify its holding in Crawford and subsequent cases regarding the scope of the Confrontation Clause and the role of interpreters. 10 As presented by the concurring opinion in Charles, the case also presents a question of when the 1

courts should refrain from deciding novel questions of constitutional law. 11 Although less pertinent, Charles presents an issue regarding the narrowing of the standard for finding plain error, and its possible effect on defendants rights. 12 This comment seeks to demonstrate that the court was correct in finding that Charles had a Sixth Amendment right to confront the interpreter, but should have waited to decide the issue when it was necessary for the outcome of the case. Part I provides a historical and legal background that influenced the case, in addition to important policy considerations surrounding the outcome. Part II outlines the holding and reasoning of the case in the context of current legal background. Part III analyzes the court s outcome and critiques the majority s choice of deciding a novel issue of constitutional law. In light of the ambiguity of language and interpretation, and the Supreme Court s holding in Crawford, the Court was correct in finding that a defendant has a Sixth Amendment right to confront an interpreter s out-of-court testimonial statements, but should not have decided the issue in the present case. I. Background The Sixth Amendment states that, [i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. 13 The right to confront witnesses and accusers has a long history dating back to Roman times before it was included in the United States Constitution in 1776. 14 This right is also internationally recognized, and is a minimum guarantee in the Rome Statute of the International Criminal Court and the European Convention on Human Rights. 15 In Mattox v. United States, the United States Supreme Court first set forth the foundation for modern Confrontation Clause law, ruling that the Sixth Amendment requires witnesses who accuse the defendant of wrongdoing to appear in court to give testimony and be cross-examined. 16 However, due to policy considerations, the court made an exception to 2

witnesses who are dead but gave testimony subject to cross-examination in a prior hearing if it was in the same criminal prosecution. 17 In 1980, the Court dramatically changed the rule of the Confrontation Clause by stating that an unavailable witness s out-of-court statement may be admitted if it bears adequate indicia of reliability, which can be inferred if it falls within a firmly rooted hearsay exception, or bears particularized guarantees of trustworthiness. 18 This decision, which made all hearsay declarations subject to the Confrontation Clause, 19 proved to be problematic. 20 Eventually, the Supreme Court overruled its Roberts decision in Crawford v. Washington, rejecting the reliability or trustworthiness mode of analysis. 21 The Court held that testimonial statements of witnesses are admissible under the Confrontation Clause only where the witness is unavailable, and only where the defendant had a prior opportunity to cross-examine the witness. 22 Scalia, writing for the majority, reasoned that this was the original understanding of the Framers, who did not intend to leave Sixth Amendment protection to the vagaries of the rules of evidence, much less to amorphous notions of reliability. 23 Despite the Court s decision in Crawford, the opinion left many unresolved issues, some of which the Court elaborated in later cases. 24 One of these issues, a slight clarification on what may include testimonial hearsay evidence, was decided in Melendez-Diaz v. Massachusetts. 25 This case involved the admissibility of affidavits reporting the results of forensic analysis, which showed that the substance that Defendant was carrying was cocaine. 26 The Supreme Court held that the analysts affidavits were testimonial statements, and the analysts conducting the scientific tests were witnesses for purposes of the Confrontation Clause, which required them to testify and be subject to cross-examination. 27 However, this decision still left many issues 3

unresolved, including whether forensic analysts will have to testify in all situations, and whether an analyst can testify as a surrogate for another. 28 A couple of years later, the Supreme Court approached some of these questions in Bullcoming v. New Mexico, to decide whether a blood-alcohol analysis was testimonial for purposes of the Confrontation Clause, and required the certifying analyst to testify in court. 29 While the prosecutor presented another analyst to testify, the Court held that this does not meet the constitutional requirement, and the defendant has a right to be confronted with the specific analyst who made the certification. 30 In addressing the issue of surrogate witness testimony, the Court determined that generally, surrogate witness testimony is insufficient, but the language of the opinion seems to suggest that there may be exceptions to this general rule. 31 Due to practical concerns, the Supreme Court may specify a surrogate exception in the future. 32 The Supreme Court has not clarified whether an interpreter, who is translating for the declarant, is required to testify for purposes of the Confrontation Clause, but other courts have addressed this issue, 33 most in the context of the hearsay rule of evidence. 34 The Eleventh Circuit decision in United States v. Alvarez, binding precedent for the Charles case, adopted the reasoning of the Second Circuit in holding that an interpreter is viewed as an agent of the defendant. 35 The interpreter s translation is therefore admissible under the Federal Rules of Evidence. 36 The only exception is when the translator has a motive to mislead or there is reason to believe that the translation was inaccurate. 37 Furthermore, in United States v. Chau, the Eleventh Circuit clarified that Crawford does not apply to sentencing, and the admission of hearsay testimony at sentencing does not violate confrontation rights. 38 Traditionally, courts viewed testimony of a witness regarding out-of-court statements translated by an interpreter as inadmissible hearsay with the exception of testimony made by an 4

interpreter that was selected by the person making the out-of-court statement. 39 This exception was made because the interpreter was then viewed as an agent of the person, making the testimony admissible under the Rules of Evidence. 40 Some jurisdictions hold that confrontation concerns do not even arise if the statement may be fairly attributed directly to the speaker. 41 These courts treat the interpreter as a language conduit, which avoids the problem of an extra level of hearsay. 42 Recently, most courts have adopted the agency theory, which treats the statements as hearsay, but are admissible under the hearsay exemption as statements made by an authorized person or agent. 43 Although most jurisdictions agree with the agency theory, its application has varied. 44 Some courts utilize a case-by-case determination, applying certain factors to determine if the interpreter is the agent of the declarant. 45 Some factors include, which party provided the interpreter, whether there is a motive to mislead, what the interpreter s qualifications and linguistic skills are, and subsequent actions. 46 Precedent in this area is limited in regards to its application to the Confrontation Clause. 47 Jurisprudence has recently developed to restrict the finding of plain error on appellate review, and expand the harmless-error doctrine. 48 The restriction of finding plain error is apparent in Charles. After a long determination that there was a Constitutional violation, the Court refused to find plain error, due to lack of binding precedent. 49 II. Case Description Charles took a slightly different approach from other cases in holding that the Sixth Amendment right to confront applies to interpreters. 50 The court rejected the argument that the interpreter was the same person as the declarant for purposes of the Sixth Amendment. 51 Furthermore, because Crawford changed the test for confrontation, the Court reasoned that reliability was irrelevant for purposes of cross-examination. 52 Despite the Court s finding that 5

Charles rights had been violated, it concluded that there was no plain error and affirmed her conviction. 53 First, the Court distinguished Alvarez as applicable to the Federal Rules of Evidence and not the Confrontation Clause. 54 The Court reasoned that Alvarez and Da Silva did not hold that the defendant is the declarant of the interpreter s statements, only that the interpreter is an agent of the declarant, making the testimony admissible under the Rules of Evidence. 55 In adopting the agency theory, the Court rejected the language conduit theory adopted by the Ninth Circuit and its conclusion that the interpreter and defendant are identical for testimonial purposes. 56 The Court emphasized Crawford s rejection of reliability and concluded that although it may be sufficient for the rules of evidence, reliability does not satisfy the Confrontation Clause, and is practically irrelevant. 57 Therefore, the Court went on to apply the Crawford test. First, the interpreter s statements were held to be testimonial because they were specifically obtained for use in a criminal investigation, and the testimony was the only evidence that proved Charles knowledge of the fraudulent documents necessary to convict her. 58 Comparing the case to Melendez-Diaz, the Court reasoned that, [i]f... even results of neutral, scientific testing, do not exempt the witness who performed the test from cross-examination, certainly the Confrontation Clause requires an interpreter of the concepts and nuances of language to be available for cross-examination at trial. 59 Thus, the interpreter in this situation is subject to confrontation for the out-of-court statements that the government introduced at trial because the statements were testimonial and Charles did not have a prior opportunity to cross-examine the interpreter. 60 After determining that it was erroneous to admit the CBP officer s testimony under the Confrontation Clause, the Court analyzed whether the error was plain. 61 A finding of plain error 6

is necessary because Charles did not object to the introduction of the CBP officer s testimony as a violation of the Confrontation Clause during trial. 62 In order to reverse an error that was not raised at trial, the error must satisfy the four-prong test analysis. Charles had to show that there was an error, the error was plain, it affected her substantial rights, and the Court must determine that it seriously affected the fairness, integrity, or public reputation of the judicial proceedings. 63 The Court quickly concludes that there can be no finding of plain error as there is no binding precedent on the issue clearly articulating that the declarant of the statements testified to by the CBP officer is the language interpreter. 64 Although the Court found error, it was not plain since there was no binding precedent on the issue of whether the declarant is the language interpreter. 65 Therefore the Court affirmed Charles conviction. III. Analysis Given the ambiguity of language and interpretation, the Court in Charles was correct in finding that the accused have Sixth Amendment protection to confront and cross-examine the interpreter regardless of the interpreter s apparent reliability. 66 However, due to the possible consequences of deciding a novel and difficult constitutional issue, 67 the Court should have exercised constitutional avoidance and refrained from deciding the subject matter until it was necessary for the outcome of the case. 68 A. Finding That the Accused Have a Right to Cross-Examine Testimonial Statements of Interpreters is in Agreement with Caselaw and Policy Considerations The Court was correct in distinguishing the rules of evidence from Confrontation Clause protection. 69 While an agent relationship may allow hearsay testimony to be admissible under the Rules of Evidence, it does not automatically permit the evidence in a Confrontation Clause issue. 70 While some argue that the interpreter s statements should be viewed as that of the declarant, this presents many issues and inconsistencies provided the uncertainty of language and 7

cultural differences. 71 The Supreme Court should adopt the agency theory of interpretation, and not the language conduit theory. 72 Although the interpreter may be seen as a neutral translator who is simply the middleman of the conversation, this assumes trustworthiness, experience and linguistic fluency in the interpreter. 73 Crawford s interpretation of the Confrontation Clause specifically rejected this argument. Furthermore, the interpreter should testify to the authenticity, veracity, and accuracy of his translation when challenged. 74 In Charles, crossexamining the interpreter was necessary to disclose a potential deficiency in training, judgment or any fundamental biases. 75 This is especially true because the government official provided the interpreter. 76 On the other hand, it may be irrelevant which party provided the interpreter if there is no reason for the interpreter to misinterpret and he or she is sufficiently qualified. 77 However, as the Supreme Court in Melendez-Diaz emphasized, its holding includes all experts, no matter how reliable and qualified the expert is, because a lack of proper training or deficiency in judgment may be disclosed in cross-examination as required by the Confrontation Clause. 78 Language and especially interpretation, is ambiguous and subject to human error. 79 The process of language translation is much less reliable, prone to error, and open to different interpretations, than scientific forensic laboratory testing, which the Supreme Court held was not exempt from confrontation. 80 Furthermore, research has shown that additional training of language interpreters is necessary to enhance the translator's ability to successfully decode from a professional, cultural and psychological perspective. 81 Adding the element that the interpreter used in Charles was over the telephone creates an additional layer of interpretation difficulty. 82 An important inquiry that could be asked during cross-examination is whether the interpreter was conducting simultaneous interpreting or consecutive interpreting. There are significant challenges to both modes of interpretation, but it might indicate whether the interpreter made a 8

substantial mistake in translation. 83 Overall, the Court was correct in finding that Charles Sixth Amendment rights had been violated, and the Supreme Court should similarly adopt a holding that does not exempt agency relationships from being subject to cross-examination under the Confrontation Clause. B. The Court Should Not Have Decided a Constitutional Problem When It Could Have Disposed of the Issue Due to Lack of Plain Error Although the Court in Charles went through a long analysis of the Confrontation Clause issue in the first part of the holding, it quickly concluded that despite the constitutional violation, the conviction had to be affirmed because of the lack of binding precedent, which precluded a finding of plain error. 84 Although plain error affecting substantial rights may be noticed even if they were not brought to the attention of the court, the recent narrowing of plain error had an affect on the Court s ability to permit relief. 85 Although the Supreme Court tightened the standard for a finding of plain error to allow redress only to miscarriages of justice, and to use it sparingly, Charles is a strong case demonstrating a miscarriage of justice. 86 Charles was convicted on criminal charges, and deported from the country. 87 Although the defendant did not raise the issue at trial, constitutional guarantees should not be analyzed with the same standard as rules of evidence or other possible errors. Precisely because of the significance of constitutional guarantees, the Court should not have analyzed the Confrontation Clause issue if it was unable to reverse the decision due to lack of plain error. 88 First, the parties did not have an opportunity to fully brief on the Confrontation Clause issue, since they were concerned with the issue of plain error. 89 Second, there are strongly rooted policy considerations that the Court should have taken into deliberation prior to deciding the novel issue of constitutional law. There is a long-standing prudential policy that we ought not to pass on questions of constitutionality... unless such adjudication is unavoidable. 90 In 9

order to avoid substantial mistakes, issues of constitutionality should be decided after taking all factors into consideration, including the possible consequences of the decision. This can only be possible if the court and the attorneys are fully prepared to discuss the issue, and a decision is necessary for the outcome of the case at hand. Conclusion In United States v. Charles, the Eleventh Circuit addressed whether an accused foreigner who does not speak English, has a Sixth Amendment right to cross-examine the interpreter, who made out-of-court testimonial statements to a government official while interpreting the defendants statements. After analyzing the agent theory of interpretation and the Supreme Court s holding in Crawford, the Court concluded that Charles constitutional rights had been violated. However, since the defendant did not object on Confrontation Clause rights to the admission of the testimony at trial, the Court was unable to find plain error, and affirmed the conviction. Provided the ambiguity and uncertainty of language and interpretation, the Court was correct in finding that Charles had a right to confront the interpreter. However, given the significance of deciding a novel constitutional issue, the Court should have exercised constitutional avoidance and decided the case when it was necessary for its outcome. In the evolving jurisprudence in this area, the Supreme Court should address the specific issue and prohibit the introduction of testimonial evidence of an interpreter unless the accused has an opportunity to cross-examine. This will prevent the loss of substantial rights due to little translation mistakes. 91 10

1 United States v. Charles, 722 F.3d 1319, 1320 21 (11th Cir. 2013). 2 Id. at 1321 3 See id. 42 Id. at 1321 53 Id.; See 18 id. U.S.C.A. 1546(a) (2002) ( Whoever knowingly... uses, attempts to use, possesses, obtains, 4 Id. accepts, or receives any such visa, permit, border crossing card, alien registration receipt 5 Id.; 18 U.S.C.A. 1546(a) (2002) ( Whoever knowingly... uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document... [s]hall be fined under this title or imprisoned.... ). 6 Charles, 722 F.3d at 1321; accord Crawford v. Washington, 541 U.S. 36, 59 (2003) (holding that testimonial statements of witnesses absent from trial may be admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to crossexamine the declarant); 7 See Charles, 722 F.3d at 1321 31. 8 See generally Thomas J. Reed, Crawford v. Washington and the Irretrievable Breakdown of a Union: Separating the Confrontation Clause from the Hearsay Rule, 56 S.C.L. REV. 185, 216 28 (2004) (discussing the separation of Confrontation Clause and the hearsay rule in overruling Ohio v. Roberts, 448 U.S. 56 (1980)); Rejecting Language Conduit Theory for Interpreters Under the Confrontation Clause, FED. EVIDENCE REV. (Aug. 8, 2013), http://federalevidence.com/blog/2013/august/rejecting-language-conduit-theory-interpretersunder-confrontation-clause [hereinafter Language Conduit]. 9 See Language Conduit, supra note 8. But see Whether a Translation is a Mere[]... Conduit for a Declarant s Statement? FED. EVIDENCE REV. (May 24, 2012) (discussing the four-factor 11

test applied by the Ninth Circuit to determine when an interpreter s statements are considered directly made by the defendant). 10 See Charles, 722 F.3d at 1321 31; Bullcoming v. New Mexico, 131 S. Ct. 2705, 2710 (2011); Melendez Diaz v. Massachusetts, 557 U.S. 305, 325 26 (2009) (holding that a forensic laboratory report was testimonial for purposes of the Confrontation Clause and the analysts are required to testify in person). 11 See Charles, 722 F.3d at 1332 (Marcus, J., concurring) (arguing that this Confrontation issue should not have been decided because it is clear that the case can be decided on a plain-error argument); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346 (1936) (finding that the Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. ). 12 See Charles, 722 F.3d at 1331; Harry T. Edwards, To Err is Human, but Not Always Harmless: When Should Legal Error be Tolerated?, 70 N.Y.U. L. REV. 1167, 1183 99 (1995) (discussing the effect of a tightening standard for finding plain error). 13 U.S. CONST. amend. VI. 14 See Crawford v. Washington, 541 U.S. 36, 42 (2003); Perine v. Van Note, 4 N.J.L. 146, 147 (1818) ( No man can be condemned in our law without hearing the witnesses against him, or having an opportunity to hear them, and to cross-examine them. ); Acts 25:16 (New International Version) ( I told them it is not the Roman custom to hand over anyone before they have faced their accusers and have had an opportunity to defend themselves against the charges. ); WILLIAM SHAKESPEARE, RICHARD THE SECOND act 1, sc. 1. ( Face to face [a]nd frowning brow to brow ourselves will hear [t]he accuser and the accused freely speak. ); GERRARD WINSTANLEY, THE LAW OF FREEDOM IN A PLATFORM, CHAPTER VI: THE KINGS OLD 12

LAWS CANNOT GOVERN A FREE COMMONWEALTH (1652), available at www.marxists.org/reference/archive/winstanley/1652/law-freedom ( The accuser and accused shall always appear face to face before any officer, that both sides may be heard, and no wrong to either party. ). But see Kenneth Graham, Confrontation Stories: Raleigh on the Mayflower, 3 OHIO ST. J. CRIM. L. 209, 211 20 (2005) (discussing the historical background of confrontation and concluding that the right of confrontation is an American innovation). 15 See Rome Statute of the International Criminal Court art. 67(1)(e), July 17, 1998, 2187 U.N.T.S. 90 ( [T]he accused shall be entitled... [t]o examine, or have examined, the witnesses against him or her.... ); See also European Convention on Human Rights art. 6(3)(d), Dec. 10, 1948, 213 U.N.T.S. 221( Everyone charged with a criminal offence has the following minimum rights: to examine or have examined witnesses against him.... ). 16 See Mattox v. United States, 156 U.S. 237, 242 44 (1895); Reed, supra note 8, at 192. 17 See Mattox, 156 U.S. at 242. 18 Roberts, 448 U.S. at 66. 19 See id. See also Reed, supra note 8, at 201 02 (stating that Roberts married the Confrontation Clause to the hearsay rule. ). 20 See Reed, supra note 8, at 212 (citing Lilly v. Virginia, 527, U.S. 116 (1999) as the breakdown between the Confrontation Clause and the hearsay rule, which demonstrates the problems of the Roberts rule). 21 Crawford, 541 U.S. at 59. 22 Id. 23 Id. at 61. 13

24 See Reed, supra note 8, at 223 (critiquing the Crawford decision in its failure to answer many important question on the sort of testimony that is admissible); Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. RICH. L. REV. 511, 525 (2005) ( The Court left for another day an effort to define comprehensively testimonial statements. ) 25 See Melendez-Diaz 557 U.S. at 307. 26 See id. 27 See id. at 311. 28 See Ronald J. Coleman & Paul F. Rothstein, Grabbing the Bullcoming by the Horns: How the Supreme Court Could Have Used Bullcoming v. New Mexico to Clarify Confrontation Clause Requirements for CSI-Type Reports, 90 NEB. L. REV. 502, 517 (2011). 29 See Bullcoming, 131 S. Ct. at 2710. 30 Id. at 2710 13 31 See Coleman & Rothstein, supra note 28 at 534 35 (asserting that Justice Sotomayor s concurring opinion could be read to allow a limited surrogate witness exception in future cases). 32 Coleman & Rothstein, supra note 28 at 535. 33 See generally Colin Miller, That s One Interpretation: NJ Court Finds Confrontation Clause Doesn t Cover Interpreters of Statements to Police, EVIDENCEPROF BLOG (Feb. 6, 2011), http://lawprofessors.typepad.com/evidenceprof/2011/02/cc-interpreter-state-of-new-jerseyplaintiff-respondent-v-reginald-venable-defendant-appellant-a3d-2011-wl-10.html (discussing New Jersey v. Venable, 2011 WL 10053, at *2 (N.J. Super. A.D. 2011) and the Court s holding that the concerns articulated in Crawford... do not apply to an interpreter who s involvement was limited to assisting the victim of the crime, in reporting the event to a police officer). 14

34 See, e.g., United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991) (providing factors to consider in deciding when an interpreter s statements should be attributed to the defendant under the agency theory); United States v. Alvarez, 755 F.2d 830, 860 (11th Cir. 1985) (finding that the translator was acting as an agent of the defendant and therefore the interpretation was admissible under FED. R. EVID. 801(c)(2)(C) & (D)); United States v. Da Silva, 725 F.2d 828 (2nd Cir. 1983) (holding that where there is no motive to mislead, the translator is no more than a language conduit and his or her statements are admissible under the Rules of Evidence); North Carolina v. Felton, 330 S.E.2d 344, 355 (1992) (finding that the use of interpreter testimony was not in violation of N.C. GEN. STAT. 8B-2(d) (1982)). 35 See Alvarez, 755 F.2d at 860 36 See FED. R. EVID. 801(c)(2)(C) & (D). 37 Da Silva, 725 F.2d at 832 (citing United States v. Ushakow, 474 F.2d 1244, 1245 (9th Cir. 1973). 38 United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005). 39 Beth Gottesman Lindie, Inadequate Interpreting Services in Courts and the Rules of Admissibility of Testimony on Extrajudicial Interpretations, U. MIAMI L. REV. 399, 420 (1993). 40 See Lindie, supra note 39, at 421. 41 See United States v. Orm Hieng, 679 F.3d 1131, 1140 (9th Cir. 2012) (reasoning that different evidentiary rules apply at the sentencing process because it is less exacting than establishing guilt); see also Transcript of Oral Argument of Laurel J. Montoya on Behalf of the Petitioner, United States v. Orm Hieng, 2011 WL 8885314 (2011) (No. 09 10401) (arguing that the use of an interpreter under the circumstances does not trigger the Confrontation Clause because if the testimony was in English, it would be admissible). 15

42 See United States v. Shibin, 722 F.3d 233, 248 (2013) (holding that interpreter was nothing more than a language conduit); see also CAL. EVID. CODE 1220 (West 1995). 43 See FED. R. EVID. 801(c)(2)(C) & (D). See, e.g., Nazemian, 948 F.2d at 527 (providing factors to consider under the agency theory); Alvarez, 755 F.2d at 860 (adopting the agency theory as used in Da Silva, 725 F.2d at 832). 44 See Lindie, supra note 39, at 423. 45 See id. at 424. 46 Id. at 424 (stating that only a few cases that have applied these factors have found that an agency relationship does not exist). 47 See Charles, 722 F.3d at 1332 (Marcus, J., concurring). 48 See Edwards, supra note 12, at 1167 84. 49 See Charles, 722 F.3d at 1330 32. 50 Compare id. at 1325 27 (rejecting the language conduit theory), and Language Conduit, supra note 8 (discussing the contrary position of the Court s holding Charles in comparison to other jurisdictions), with Whether a Translation is a Mere[]... Conduit for a Declarant s Statement? FED. EVIDENCE REV. (May 24, 2012) (analyzing the Ninth Circuit decision to consider statements of the interpreter to be directly considered the statements made by the defendant to the officers). 51 See Charles, 722 F.3d at 1327 n.9. 52 Id. at 1329 53 See id. at 1331 32. 54 See id. at 1325 31 (reasoning that for hearsay purposes, the interpreter is viewed as an agent of the defendant). 16

55 See id. at 1331, 1325 1327; Alvarez, 755 F.2d at 859 60 (Rejecting the option of admitting the interpreter s statements as the defendants own). 56 See Charles, 722 F.3d at 1327 n.9. 57 See id. at 1329 n.11 ( [W]here testimonial statements are concerned, the Sixth Amendment s protection cannot be left to the vagaries of the rules of evidence. ). 58 See id. at 1321 n.1. 59 Charles, 722 F.3d at 1329 n. 13 (reasoning that language interpretation is much less reliable than scientific forensic laboratory testing). 60 Id. at 1330. 61 Id. See generally U.S. Customs and Border Protection, Inspector s Field Manual, 17.18 (2006) (providing indications that misinterpretation exists while using a translator). 62 Charles, 722 F.3d at 1322. 63 Id. 64 Id. (quoting Chau, 426 F.3d at 1322 ( [T]he law of this circuit [is] that... there can be no plain error where there is no precedent from the Supreme Court or this Court directly resolving the issue. )); cf. People v. Torres, 164 Cal.App.3d 266, 270 (1985) (finding that although there was a violation of CAL. EVID. CODE 751 (West 1995), the error was harmless). 65 Id. at 1331 32. 66 See generally Muneer I. Ahmad, Interpreting Communities: Lawyering Across Language Difference, 54 UCLA L. REV. 999, 1031 33 (2007) (reasoning that language is inherently ambiguous and cultural context and interpretation adds an additional layer of confusion). 67 See Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts court, 2009 SUP. CT. REV. 181, 182 (arguing that the use of the canon of constitutional avoidance 17

signals a Court that is actively engaged in shaping law and policy, not acting modestly. ). E.g., Roberts, 448 U.S. at 66. 68 See Ashwander, 297 U.S. at 346 47; Hasen, supra note 67 at 182. 69 See Charles, 722 F.3d at 1327 (emphasizing that unlike the Confrontation Clause, the rules of evidence are designed to police reliability); see also Sherry F. Colb, A Murder Case Highlights an Odd Exception to the Sixth Amendment, VERDICT, Feb. 5, 2014, at 2, available at http://verdict.justia.com/2014/02/05/murder-case-highlights-odd-exception-sixth-amendment (comparing and contrasting hearsay and confrontation). 70 See Charles, 722 F.3d at 1323. 71 Cf. Ahmad, supra note 66, at 1036 (finding language and interpretation ambiguous); Floralynn Einesman, Confessions and Culture: The Interaction of Miranda and Diversity, 90 J. CRIM. L. & CRIMINOLOGY 1, 39-42 (1999) (discussing the complication of Miranda rights and language barriers). 72 See generally Shea Denning, Is the Translation or Interpretation of Another s Statements Hearsay? N.C. CRIM. L. (Dec. 7, 2011), http://nccriminallaw.sog.unc.edu/?p=3120 73 See generally Molly McDonough, Lost in Translation, Lack of Qualified Interpreters May Compromise Justice, 90 A.B.A.J. 18, 24 (NOV. 2003) (discussing the difficulties of finding qualified interpreters and its consequences); Bureau of Labor Statistics, Interpreters and Translators, U.S. Department of Labor (Jan. 8, 2014), http://www.bls.gov/ooh/media-andcommunication/interpreters-and-translators.htm (noting the increased need of interpreters). 74 Lindie, supra note 39, at 432. 18

75 See Brief of Appellant at 26 27, United States v. Charles, 722 F.3d 1319 (11th Cir. 2013) (No. 12 14080 CC) (specifying that this particular instance of interpretation may have been tainted by bias or by the usual risks of hearsay misunderstanding, misperception, misstatement. ). 76 See Lindie, supra note 39, at 420 (indicating that most courts recognize the exception to allow admission of testimony if interpreter was provided by the person making the statement). 77 See Brief for Appellee at 19 20, United States v. Charles, 722 F.3d 1319 (11th Cir. 2013) (No. 12-14080-CC) (arguing that under Da Silva, 725 F.2d at 832, the translation is attributable to the defendant and the interpreter is no more than a language conduit ). 78 See Reply Brief for Appellant at 6, United States v. Charles, 722 F.3d 1319 (11th Cir. 2013) (No. 12-14080-CC) (quoting Melendez-Diaz, 557 U.S. at 320). 79 See Ahmad, supra note 66 at 1036. 80 See Charles, 722 F.3d at 1329. Cf. Frequently Asked Questions About Court and Legal Interpreting and Translating, NAJIT (Apr. 24, 2014), http://www.najit.org/certification/faq.php (discussing qualifications of court interpreters). 81 See Phyllis N. Butow et al., A Bridge Between Cultures: Interpreters Perspectives of Consultations with Migrant Oncology Patients, SPRINGER VERLAG, Nov. 26, 2010, at 235, available at doi: 10.1007/s00520-010-1046-z (finding three broad issues faced by interpreters: accuracy versus understanding, translating only versus cultural advocacy and sensitivity, and professionalism versus providing support); See also Jane Andrews, It s a Very Difficult Question Isn t It? Research, Interpreter and Research Participant Negotiating Meanings in an Education Research Interview, 23(3) INT L J. OF APPLIED LINGUISTICS 316, 320 (2013), available at doi: 10.1111/ijal.12039 ( Translations, then are never easy, never transparent, never simple encodings and decodings from one language to another. ). 19

82 Cf. Michael W. Link, Measuring the Quality of Real-Time Telephone Survey Interpreters, 21(3) INT. J. OF PUB. OP. RESEARCH 271, 281 (2009) available at doi: 10-1093/ijpor/edp027 (finding that conceptual problems making interpretation difficult occurred 4.0 percent of the time). See generally Qualifications of Technical Interpreters, LANGUAGE SCI. (Apr. 24, 2014), http://www.languagescientific.com/translation-services/multilingual-interpretingservices/interpreter-qualifications.html (discussing certain skills interpreters should possess). 83 See Modes of Interpreting, LANGUAGE SCI. (Apr. 24, 2014), http://www.languagescientific.com/translation-services/multilingual-interpretingservices/interpreting-services-types.html (comparing simultaneous and consecutive interpreting). 84 See Charles, 722 F.3d at 1331. 85 See Edwards, supra note 12, at 1183 (citing the FED. R. CRIM. P. 52(b)). 86 See id. at 1183. 87 See 18 U.S.C.A. 1546(a) (2002). 88 See Charles, 722 F.3d at 1332 (Marcus, J., concurring) (arguing that declining to address an unnecessary question preserves the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. ). 89 See Charles, 722 F.3d at 1334 (Marcus, J., concurring) ( [T]he government primarily argued that the lack of binding precedent meant that the error was not plain, depriving us of full merits briefing on the underlying constitutional question. ). 90 Id. (citing Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1994)). 91 E.g., Arika Okrent, 9 Little Translation Mistakes That Caused Big Problems, MENTAL FLOSS (Apr. 24, 2014, 11:44 PM), http://mentalfloss.com/article/48795/9-little-translation-mistakescaused-big-problems. 20