Recall the childhood game “telephone.” Children are arranged in a large circle, and one child whispers a short phrase to the child on his or her left. That child then whispers what he or she heard to the child on his or her left, and so on. The game ends when the child to the original child’s right receives the message and announces what he heard. Inevitably, what the final child announces bears little, if any, resemblance to the original child’s message.

Rather than a large circle of children, imagine only four children, and compare this to the following situation: A nonEnglish-speaking defendant, in a police interview, answers a police officer’s questions through a foreign-language interpreter. The interpreter translates the defendant’s—the original child’s—statements for the police officer. At trial, the police officer relays the defendant’s statements—initially conveyed to the police officer by the translator—to the jury to be considered as evidence. The final child to hear the message, for whom the original message is most distorted, is the jury.

The telephone game warps the original child’s message. Typically, the hearsay rules of the Federal Rules of Evidence (FRE) prevent potential distortion by excluding hearsay testimony. When a person’s testimony includes out-of-court statements made by another person who does not testify, and when those statements are meant to prove the truth of the matter asserted, the testimony is ordinarily inadmissible under the hearsay rules. When hearsay is admissible in a criminal proceeding under a hearsay exception, however, the Sixth Amendment’s Confrontation Clause provides a defendant the right to confront witnesses who testify against him. Thus, the defendant may cross-examine the person who made the out-of-court statement(s). This right is limited by the defendant’s prior opportunities to cross-examine witnesses. Logically, this applies to the defendant’s own statements—he is allowed to take the stand at trial and testify to his prior statements made to the police. The relationship between hearsay and the Confrontation Clause is complex, however, and is in something of a state of flux.

In the telephone game, it is unclear whether the original child may confront the various children in the circle. When a person testifies to a defendant’s own statements for use against the defendant, the statements are not hearsay, and the out-ofcourt person is not subject to cross-examination. In the game, are the statements appropriately considered the original child’s own after they have been communicated around the circle, or should each child be considered a separate declarant? If the latter, the final child’s announcement would be considered hearsay, and the other children in the circle would be subject to crossexamination. Analogously, it is unclear whether the criminal defendant has a constitutional right to confront the foreign-language interpreter—the second child in the four-person hypothetical— because it is unclear whether the foreign-language interpreter’s out-of-court statements are hearsay.

Courts are divided on this issue. The vast majority have held that the final child’s statements are equivalent to the original child’s for the purpose of hearsay analysis. These courts have explained that, for a non-English-speaking defendant, a foreign-language interpreter acts as a “language conduit” or an agent for the defendant, so there is no hearsay issue—a defendant is not entitled to “confront himself.” The Eleventh Circuit, however, has taken a different approach: because the interpreter necessarily engages in some independent analysis when translating the defendant’s statements, the interpreter is considered a separate declarant. Thus, the police officer’s testimony concerning the interpreter’s out-of-court statements is hearsay, entitling the defendant to confront the interpreter.

This distinction has significant implications. Consider, for example, an officer’s testimony that a Creole defendant admitted, via an interpreter during an interrogation, that “when she sat down [on the plane], she started reading the [official immigration travel authorization] document and she noticed that the document was illegal because it didn’t fit her profile.” How did the interpreter determine that what the defendant said in Haitian Creole translates to “illegal” in English? Similarly, why did the interpreter describe the defendant’s statements as not “fit[ting] her profile”? Without an opportunity to cross-examine the interpreter, it is impossible to say that the defendant knew that her immigration documents were illegal. Next, consider an officer’s testimony that a Mexican defendant purportedly confessed, through an interpreter, to knowing that his vehicle was “loaded.” Did the defendant understand that the car was “loaded” with illegal drugs or simply with gasoline? Without an opportunity to cross-examine the interpreter, it is impossible to say that the defendant knew that his car was “loaded” with illegal drugs, rather than simply “loaded” with innocuous goods.

Finally, consider a situation in which a police officer deliberately misconstrues a defendant’s translated statements. When the subpoena power is limited, it is impossible—without cross-examining the interpreter—to know how an interpreter arrived at a particular translation of a defendant’s statements, let alone to ensure that a police officer accurately relayed the statements. Cross-examining an interpreter helps establish the accuracy of a foreign-language translation, including the basis for interpretive decisions; this is important because translated statements are often critical evidence.

This Comment explores the scope of Confrontation Clause rights when a foreign-language interpreter translates a defendant’s statements to the police. It argues that these interpreters should be subject to confrontation—a position very much aligned with linguistic theory and Supreme Court precedent. For example, in immigration proceedings, non-English-speaking immigrants regularly challenge translations, and courts have held that an inaccurate translation constitutes a violation of the Fifth Amendment’s Due Process Clause.

Whether a non-English-speaking defendant has an opportunity to confront his interpreter(s) is an increasingly important issue. In fiscal year 2013, district courts reported that they used interpreters more than 330,000 times to translate 117 languages. Further, as of December 31, 2012, there were over 90,000 non-US-citizen inmates in federal and state prisons, and between October 1, 2009, and September 30, 2010, 48.1 percent of convicted offenders (37,428 individuals) were non–US citizens. This reflects a broader societal trend in the United States: in the 2010 national census, over 60 million individuals reported speaking a language other than English at home, and over 22 percent of those individuals (over 13 million individuals) reported speaking English “not well” or “not at all.”