Academic journal article Journal of Criminal Law and Criminology

The Validity of United States V. Nazemian Following Crawford and Its Progeny: Do Criminal Defendants Have the Right to Face Their Interpreters at Trial?

Academic journal article Journal of Criminal Law and Criminology

The Validity of United States V. Nazemian Following Crawford and Its Progeny: Do Criminal Defendants Have the Right to Face Their Interpreters at Trial?

Article excerpt

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 


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. …

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