Out of court statements by an interpreter who translated for an officer interrogating the defendant are testimonial under Crawford v. Washington

In U.S. v. Charles the Eleventh Circuit found that the out-of-court statements by an interpreter to a Custom’s officer interrogating the defendant were testimonial and their admission was in violation of Sixth Amendment right to confront the interpreter as required by the Supreme Court’s decision in Crawford v. Washington. The defendant was convicted of knowingly using a fraudulent travel document, in violation of 18 U.S.C. 1546(a). When Ms. Charles entered the United States, she presented to a Customs and Border Protection officer her Haitian passport and a Form I-512 which provides authorization for persons to travel in an out of the United States while they are in the process of gaining legal immigration status. An inspection of the I-512 revealed that the names on the computer database did not match the name on the document in her possession. She was interrogated by a CBP officer who did not speak Creole but who used an over-the-phone interpreter service under contract with the Department of Homeland Security to communicate with the defendant and conduct his interrogation. The interpreter interpreted from English to Creole and then from Creole to English. At the trial the government did not call the interpreter to testify but presented the testimony of the CBP officer who conducted the interrogation through an interpreter and who told the jury what Charles said through the interpreter. The officer testified that she said that when she started reading the document and noticed the document was illegal because it did not fit her profile.

On appeal the defendant argued that her Confrontation Clause rights were violated by the admission of the CBP officer’s in-court testimony about the interpreter’s out-of-court statements without an opportunity to cross examine the interpreter. The defendant did not have a chance to cross examine the interpreter regarding the meaning any of Charles’ statements or the specific words she used. When the interpreter told the CBP officer that the defendant knew the form was illegal, the defendant could not cross examination about what actual words Charles used in Creole and whether the words she used could have had some other meaning.

The 11th Circuit reviewed this for plain error because the defendant did not object during the trial to the CBP officer’s testimony was a violation of the 6th Amendment. Under plain error standard the court of appeals cannot correct an error not raised at trial unless: (1) there was error, (2) the error was plain, (3) it affected the defendant’s substantial rights, and (4) the court determines the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Analyzing the statements by the interpreter in light of the Supreme Court’s decision in Crawford v. Washington, the court determined that the interpreter’s statements were testimonial. The 11th Circuit determined that the defendant had a Sixth Amendment right to confront the interpreter who was the out of court declarant whose testimony the government sought to introduce through the CBP officer. However, the court of appeals found no plain error because there was no binding circuit precedent or Supreme Court precedent clearly articulating this rule, that the declarant of the statements testified to by the CBP officer is the language interpreter.