The Hearsay and Confrontation Clause Problems Caused by Admitting What a Non-Testifying Interpreter Said the Criminal Defendant Said

Zachary C. Bolitho, Campbell University School of Law


This Article proceeds in four parts. Part I provides an in-depth discussion of the hearsay problem raised by admitting statements made by a non-testifying interpreter. It explores the historical treatment of the problem and discusses the development of the agency and language conduit theories. Additionally, Part I highlights the flaws with both theories—the language conduit theory is based on a false premise regarding the task of interpreting, and the agency theory contradicts well settled principles of agency law.

Part II discusses the Confrontation Clause issue by describing the current state of the law and arguing that the Sixth Amendment is violated when the government admits statements that a non-testifying interpreter made to a police officer outside of court. Specifically, when an interpreter tells a police officer what the defendant said, the interpreter has made a “testimonial” statement under Crawford and its progeny—particularly Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico. Part III provides practical advice on how prosecutors and police officers can obtain and admit such statements without violating the hearsay rules and the Confrontation Clause. A brief conclusion follows in Part IV.