An interesting confrontation issue

Are you at a base overseas?

Do you have foreign national witnesses or foreign language documents as evidence in your case?

United States v. Aifang Ye, No. 12-10576 (9th Cir. 2015)

may be of interest to you.

The court held that the defendant’s argument that the government’s failure to call certain translators as witnesses at trial violated her rights under the Confrontation Clause is foreclosed by precedent.

Sayeth a headnote.  Factually it appears:

Prior to trial, Ye and Zhenyan objected that it would violate the Confrontation Clause of the Sixth Amendment to admit statements they had made to DHS unless the USCIS Language Line translators who assisted them were called to testify. After considering testimony and other evidence regarding the nature of USCIS’s translation services, the district court overruled the objection. Ye argues on appeal that the district court erred by subsequently admitting the translated statements at trial.

 

In United States v. Nazemian, 948 F.2d 522, 525–28 (9th Cir. 1991), we held that, as long as a translator acts only as a language conduit, the use of the translator does not implicate the Confrontation Clause. Ye argues that Nazemian is inconsistent with the Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36 (2004), [and its progeny].

As Ye correctly concedes, however, we already have held that Nazemian remains binding circuit precedent because it is not clearly irreconcilable with Crawford and its progeny.

Ye alternatively argues that the district court misapplied Nazemian in admitting the translated statements here.

The “Nazemian [test] requires analyzing four factors:

“(1) which party supplied the interpreter, (2) whether the interpreter had any motive to mislead or distort, (3) the interpreter’s qualifications and language skill, and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated.”