Out-of-Court Translations Can Count as Hearsay, Too
The well-known rule against hearsay prohibits the admission of out-of-court statements offered to prove the truth of the matter asserted. Each time a statement gets repeated, it adds an additional layer of hearsay. This rule creates a special problem for cases involving out-of-court statements in a language other than English, particularly when the interpretation or translation of those statements happens out of court as well. That’s because the interpretation or translation itself technically counts as another out-of-court statement, making it “hearsay-within-hearsay.”
As the case below demonstrates, federal courts have developed a four-factor approach to determine whether a translator or interpreter is acting as a “mere conduit” for the speaker—thereby alleviating the hearsay issue—or whether the translation or interpretation itself should be considered hearsay.
Polish Speakers Argue That Translated Statement Is Hearsay
Community Association of Underwriters of America v. Queensboro Flooring Corporation arose out of a tragic explosion caused by a flooring company’s failure to secure a propane gas pipeline properly after removing a heater from a unit in a housing development.
Arkadiusz Pozarlik, a flooring company employee, suffered extensive injuries due to being inside the unit when the pipeline exploded. Arkadiusz and his wife Agnieszka, both Polish speakers with limited English proficiency, sued the flooring company and property association for negligence and loss of consortium. The defendants’ insurance providers then sued the company to indemnify them against paying any judgment the Pozarliks might obtain against the company.
Prior to trial, the flooring company indicated its intention to introduce the English translation of Arkadiusz’s statement in Polish that he smelled gas prior to the explosion. The company intended to undercut its own liability by suggesting that Arkadiusz was also negligent by remaining in the apartment despite smelling gas.
The Pozarliks moved to exclude the statement as inadmissible hearsay. Although the out-of-court statements of party opponents are typically admissible, the Pozarliks argued that the translation of Arkadiusz’s statement from Polish into English made it hearsay because there was no way to test the accuracy of the translation at trial.
Court Applies “Mere Conduit” Four-Factor Test
The court began its analysis by noting that federal courts typically permit the admission of translated or interpreted statements so long as the underlying statement is admissible and there is no showing of unreliability or a motive to mislead. It then applied a four-factor test to determine whether bias or unreliability exists within this case or whether, on the other hand, the interpreter acted as a “mere conduit” for the statement. These factors were first applied by the Ninth Circuit in the 1991 case of United States v. Nazemian but have since been adopted by several federal circuits for use in both civil and criminal cases.
The first factor the court considered was which party provided the interpreter of the statement. Interpreters hired by a given party might be biased toward interpretations that benefit that party. In this case, interpreters provided by the state police and the hospital during their interviews with Arkadiusz interpreted his statement that he smelled gas before the explosion. Thus, neither party provided the interpreter and there was no risk of resulting bias.
The second factor was whether the interpreter had any motive to mislead or distort. The court pointed out that both the state police interpreter and the hospital interpreter were performing functions in which accuracy was necessary and expected by their employers. The Pozarliks identified no reason why either interpreter would deviate from this duty in translating Arkadiusz’s statement about smelling gas before the explosion.
The third factor was the interpreters’ qualifications and language skills. The state police interpreter testified to her qualifications at her deposition, and the court noted that the Pozarliks did not contest that the hospital interpreter was too unskilled to ensure that Arkadiusz was provided with adequate medical care. Thus, the court deemed the interpreters sufficiently qualified.
The final factor was whether actions taken after the conversation were consistent with the statement as interpreted. The Pozarliks could not identify any actions after Arkadiusz’s interviews that were inconsistent with the interpretation provided by the state police and hospital interpreters.
All four of the “mere conduit” factors thus weighed against finding that the interpretation of Arkadiusz’s statement was hearsay. Although the court technically reserved judgment on the issue until trial, it telegraphed that it intended to admit the statement interpreted from Polish to English under the “mere conduit” test.
Translators Employed by Counsel Create Hearsay Issues Under “Mere Conduit” Test
Queensboro Flooring involved interpreters not hired by either party. When a party employs the interpreter, at least the first two factors of the “mere conduit” test can create hearsay issues. That was the case in Canizales v. Lawrence, a Texas case in which a Spanish-speaking employee sued his employer for labor law violations. The employer sought to exclude the plaintiff’s declaration translated from Spanish to English as hearsay at the summary judgment stage.
Applying the “mere conduit” test, the court found that the first two factors—which party hired the translator and whether there was a motivation for bias—both weighed against admitting the statement. That was because the translator was an employee of the plaintiff’s attorney, which created the strong possibility that the translation was biased in favor of the plaintiff. Moreover, the plaintiff failed to offer any information about the qualifications or skills of the translator. Because three of the four “mere conduit” test factors weighed against admitting the statement, the court deemed it hearsay.
Attorneys wishing to avoid hearsay issues for translated or interpreted statements should be aware of the “mere conduit” test. The safest route is to hire a qualified, independent translator or interpreter for legal document translation, client interviews, and depositions. All Language Alliance, Inc. provide on-site in-person legal interpreters, translators, and court interpreters via Zoom in Polish, Arabic, Oromo, Mongolian, Russian, Mandarin, Amharic, Romanian, Punjabi, Korean, Italian, Cantonese, Spanish, and other common and rare foreign languages.
Community Association of Underwriters of America, Inc. v. Queensboro Flooring Corporation, Case No. 3:10-cv-1559, was decided by the United States District Court for the Middle District of Pennsylvania on April 29, 2016.
Canizales v. Lawrence, Case No. H-07-3796, was decided by the United States District Court for the Southern District of Texas on February 18, 2009.
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