This thesis contends that the declarant of the English-language translation of an LEP suspect’s out-of-court testimony “must” become no one else but the suspect, not by making the interpreter the suspect’s “agent” through the application of FRE 801(d)(2)(C) or (D), but by ensuring that every interpreter passes muster as a true “language conduit” to enable the application of FRE 801(d)(2)(A).
The “agent-and-conduit interpreter” theory is a dominant U.S. case law that has dealt with the hearsay issue of an interpreter-assisted extrajudicial testimonial statement. To enable the application of “a party opponent’s vicarious admission” stipulated by FRE 801(d)(2)(C) or (D), the theory claims that when two parties begin an interpreter-assisted conversation, the interpreter becomes a “dual agent” for both parties, who presume that the interpreter is acting as a language “conduit” with prima facie accurate translations.
This hybrid legal theory of the traditional agency law and a 20th-century legal fiction about a foreign-language interpreter, however, embodies critical logic dilemmas, especially faced with the renewed Confrontation Clause challenge from Crawford.
The thesis, comprising two main research results: a legal research and a forensic-linguistic research, calls for a complete overhaul of the “agent-and-conduit” theory used for the application of FRE 801(d)(2)(C) or (D), by maintaining that it be replaced by a new implementation of the 21st-century-style “authenticated conduit” measure that will enable the application of FRE 801(d)(2)(A) instead.
In Part I: Legal Research, the thesis demonstrates that no “agency relationship” takes place between the suspect and the interpreter in a police interview for the reason that the suspect neither consents to it nor controls the interpreter. The thesis further argues that imposition on the suspect of any such consent to an assumed agency relationship with an interpreter will violate the suspect’s “non-waivable” Fifth Amendment due process right against “potential verballing.” The thesis then advocates a realization of a “true conduit” that will enable the application of FRE 801(d)(2)(A), by exerting 21st-century technological and intellectual resources that are becoming increasingly advanced, accessible, and available. Also, to attest to the adequacy of attaining a “true conduit,” the thesis demonstrates that the “true conduit” notion is also in harmony with the doctrine of the copyright law on the protectible elements of the original copyright that continue to exist in its translation. To achieve the “true conduit,” the thesis calls for mandatory introduction of video recording of interpreter-assisted custodial police interviews and mandatory authentication of the interpreter’s translation accuracy by a certified court interpreter who will also act as an expert witness.
Part II: Forensic-Linguistic Research is an empirical substantiation for Part I, in the form of an action-study analysis, using an authentic recording of a custodial police interview with a Dari interpreter. The thesis demonstrates that though there are certain ways, such as turn-taking cycles, rendition and pause time comparisons, monolingual extra round-trips, etc., by which monolingual parties (the police and the suspect) in a police interview can assess the interpreter’s accuracy and reliability, there is a maximum limit to such indirect accuracy confirmation without a complete check-translation. The research empirically demonstrates that an authenticated check translation is absolutely crucial for fact-triers’ determination of the interpreting accuracy and impartiality, a result that strongly supports not only the introduction of digital recording but also mandatory production of an authenticated complete transcript of such check translation
