In U.S. v. Charles, No. 12-14080 (July 25, 2013), the Court held that the admission of third-party testimony as to the out-of-court statements made by an interpreter who translated Charles’ creole language statements into English during the Customs and Border Protection’s interrogation of Charles violated the Confrontation Clause. However, because the issue was raised for the first time on appeal, and there was no binding Circuit precedent on point, the error was not “plain” – and the Court affirmed the conviction.
The Court noted that under Crawford v. Washington and its progeny, the Confrontation Clause excludes out-of court “testimonial” statements. Here, the translator’s statements were testimonial – the government sought admission of statements made during interrogation, for the purpose of proving their truth. The Court found that its precedent in United States v. Alvarez had not addressed the Confrontation Clause admissibility of translator statements, and its hearsay determination was therefore not dispositive.
[Marcus, J., specially concurring, would not have reached the merits of the Confrontation Clause issue.]