Lost in Translation? Interpreters’ Out-of-Court Statements Should Be Admissible Under Kan. Stat. Ann. § 60-460(d)(1)

By: Hayley Koontz, Comment Editor

I. Introduction

Maria is in a hospital because she lost consciousness after her ex-boyfriend broke into her home and hit her repeatedly.  Maria provides an account of her experience to a social worker.  Maria speaks only Spanish, and the social worker speaks only English.  Consequently, a hospital interpreter is called to facilitate the conversation.  The interpreter listens to Maria explain what happened in Spanish and then communicates what Maria said to the social worker in English.  Maria later sues the ex-boyfriend for civil battery and seeks to introduce the interpreted statements.  At trial, the ex-boyfriend objects to the interpreted statements as hearsay because the interpreter does not testify, which leads the trial court to consider whether the interpreted statements can be admitted under a hearsay exception.[1]

The Kansas hearsay exceptions statute, Kan. Stat. Ann. § 60-460, provides that when a person who is not testifying at a hearing makes a statement that is “offered to prove the truth of the matter stated,” that statement is hearsay and is not admissible as evidence unless it falls into certain enumerated exceptions.[2]  One such exception is the “present-sense-impression”[3] exception, Kan. Stat. Ann. § 60-460(d)(1), which provides that an out-of-court statement is admissible when a court finds that the declarant made the statement while he or she “was perceiving the event or condition which the statement narrates, describes or explains.”[4]  A statement admitted under Kan. Stat. Ann. § 60-460(d)(1) must be a spontaneous “reaction to contemporary perception” of an event.[5]

This forum post proposes that Kansas courts should interpret Kan. Stat. Ann. § 60-460(d)(1) to include statements made by interpreters.  This approach would be consistent with the text of Kan. Stat. Ann. § 60-460(d)(1).  Further, the approach would provide for interpreters’ statements to be admitted in appropriate cases while avoiding many of the concerns about admitting such statements that the Kansas Supreme Court identified in State v. Gutierrez-Fuentes.[6]  This approach would also allow judges to exercise discretion about whether to admit interpreters’ statements. 

This analysis has two limitations.  First, there is a double-hearsay issue when a party seeks to admit an interpreter’s out-of-court statement about the out-of-court statement of another person, and thus each statement must fall into a hearsay exception to be admissible.[7]  Consequently, the analysis assumes that the out-of-court statement that the interpreter is interpreting is itself admissible under a hearsay exception,[8] and that the only statement at issue is the interpreter’s statement.  Second, this forum post does not address any Confrontation Clause issues that may arise when an out-of-court statement is admitted against a criminal defendant.[9]             

II. Background

In 2022, the Kansas Supreme Court ruled in State v. Gutierrez-Fuentes that the statements an interpreter makes when they are communicating between people who speak different languages cannot be admitted as statements of the people whose messages the interpreter conveys under the Kan. Stat. Ann. § 60-460(a) hearsay exception.[10]  That exception allows “[a] statement previously made by a person who is present at the hearing and available for cross-examination” to be admitted, as long as the person’s statement would be admitted if the person made the statement while he or she was testifying in court.[11]  In Gutierrez-Fuentes, the Spanish-speaking declarant testified at trial, but the interpreter did not.[12]  The State argued that the interpreter’s statements should be treated as a the Spanish-speaking declarant’s statements and admitted because the Spanish-speaking declarant was present to testify about the statements.[13] 

The Kansas Supreme Court held that the interpreter’s statements must be considered separately from the Spanish-speaking declarant’s statements,[14] identifying at least three concerns that arise if an interpreter’s statements are treated as the Spanish-speaking declarant’s statements: (1) because of the differences between languages, it is not always possible for an interpreter to convey a “one-to-one correspondence between words or concepts in different languages”[15]; (2) because of these language differences, the interpreter must make judgments about how to communicate the message; and (3) the party the statement is introduced against has no way to test the interpretation’s reliability.[16] 

Despite these concerns, the Gutierrez-Fuentes court did not expressly foreclose the possibility that an interpreter’s statements could be admitted under another hearsay exception.[17]  Rather, the court concluded that “[b]ecause no valid exception to their inadmissibility was asserted, the interpreter’s statements under these facts were inadmissible hearsay.”[18]  Some courts in other jurisdictions have already held that interpreted or translated statements are admissible under their own present-sense-impression exceptions.[19] 

Kansas Senate Bill 72 was introduced after the Gutierrez-Fuentes decision.[20]  The bill would have added another hearsay exception to Kan. Stat. Ann. § 60-460, which would allow out-of-court statements that a party makes to a translator to be admitted “without the testimony of the translator,” unless a court “finds that the translator had a motive to mislead or distort the statement or that the translation was substantially inaccurate.”[21]  The exception would only apply to parties’ statements.[22]  The Senate Committee on Judiciary held a hearing on the bill on February 9, 2023 but took no other action.[23]

III. Analysis

A.  Kan. Stat. Ann. § 60-460(d)(1) Can Reasonably Be Interpreted to Encompass Interpreters’ Statements

Kansas courts can interpret Kan. Stat. Ann. § 60-460(d)(1) to include statements made by interpreters consistently with the plain meaning of the statute.  Subsection (d)(1) allows the court to admit a declarant’s statements if the court finds the declarant made the statement while they were “perceiving the event or condition which the statement narrates, describes or explains.”[24]  Here, the interpreter “perceiv[es] the event” of the Spanish-speaking person’s[25] statement, and the interpreter’s resulting statement “describes” the message of the Spanish-speaking person’s statement.

First, the interpreter “perceiv[es]” the Spanish-speaking person’s statement.  The definitions section for Kan. Stat. Ann. § 60-460 states that “‘[p]erceive’ means [to] acquire knowledge through one’s own senses.”[26]  The interpreter acquires knowledge about what the Spanish-speaking person said through his or her sense of hearing.[27]  The interpreter listens to what the Spanish-speaking person said and then restates the Spanish-speaking person’s message in the other language.  Thus, the interpreter perceives the Spanish-speaking person’s statements.

 Second, the Spanish-speaking person’s statement is an “event.”  Because the definitions section does not define “event,” it is helpful to consider the dictionary definition of the word.[28]  Merriam-Webster defines “event” as “something that happens.”[29]  Here, the Spanish-speaking person’s statement is “something that happens” because the Spanish-speaking person speaks and conveys a message.  Therefore, an event has occurred.

Finally, the interpreter’s statement “describes” what the Spanish-speaking person said.  Although there is no definition of “describe” in the statute, Merriam-Webster defines “describe” to mean “to represent or give an account of in words.”[30]  A key part of an interpreter’s job is to ensure the message is as accurate as possible, so the interpreter will try to stick closely to the meaning of the Spanish-speaking person’s statements in Spanish.[31]  By its very nature, then, an interpreter’s statement describes or gives an account of what the Spanish-speaking person has said.  For these reasons, the interpreter perceives the Spanish-speaking person’s statements within the plain meaning of Kan. Stat. Ann. § 60-460(d)(1).

B. Interpreting Kan. Stat. Ann. § 60-460(d)(1) to Include Interpreters’ Statements Would Be Consistent With Gutierrez-Fuentes

Even though the Kansas Supreme Court has held that an interpreter’s statements are not admissible as the Spanish-speaking person’s own statements under Kan. Stat. Ann. § 60-460(a),[32] such statements should be admitted under Kan. Stat. Ann. § 60-460(d)(1). 

Kansas courts should hold that Kan. Stat. Ann. § 60-460(d)(1) includes statements by interpreters because this approach keeps the interpreters’ statements conceptually separate from the statements of the person for whom they are interpreting.  In Gutierrez-Fuentes, the Kansas Supreme Court found that the interpreter’s statements “must be separately considered for admissibility.”[33]  Admitting statements under subsection (d)(1) would allow the interpreter’s statements and the Spanish-speaking person’s statements to remain independent of each other.  The statement admitted under subsection (d)(1) would be the interpreter’s statement about what the interpreter perceived the Spanish-speaking person said,[34] as opposed to the Spanish-speaking person’s own statement conveyed by the interpreter in English.  Thus, the interpreter’s statements can be “separately considered for admissibility”[35] if such statements are admitted under subsection (d)(1).

Interpreting Kan. Stat. Ann. § 60-460(d)(1) in this way would also avoid some of the specific concerns that the Kansas Supreme Court identified with treating the interpreter’s statements as the Spanish-speaking person’s own statements under Kan. Stat. Ann. § 60-460(a). First, this approach would sidestep the court’s concerns that an interpreter cannot always interpret a message word-for-word and that interpreters necessarily make judgments when they decide how to convey a message.[36]  For interpreted statements admitted under subsection (d)(1), the court would consider the interpreter’s perception of the Spanish-speaking person’s statement.[37]  Thus, an interpreted statement need not be an exact analog of what the Spanish-speaking person said.  Rather, subsection (d)(1) only requires that the interpreter perceive the statement of the Spanish-speaking person and describe that statement.[38]  The interpreter’s statement should be admitted under subsection (d)(1) to show what the interpreter understood the Spanish-speaking person’s message to mean, without the added burden of requiring the message to be conveyed word-for-word.

Finally, although the Kansas Supreme Court was concerned that a party could not test the interpretation’s reliability,[39] the rationale for the Kan. Stat. Ann. § 60-460(d)(1) exception may provide a reason the statements should be admitted anyway.  Hearsay statements under subsection (d)(1) are admitted because those statements have a “characteristic of spontaneity” that arises from a declarant’s “reaction to contemporary perception” of an event.[40]  Essentially, the contemporaneous nature of the statements makes it more likely that those statements are reliable.[41]  When the interpreter’s statements are made immediately after the interpreter heard the Spanish-speaking person speak, there is little danger that the interpreter will forget the substance of the message they are conveying, and there is also little time to change the substance of the message.[42]  Thus, in circumstances where an interpreter conveys a message from one person immediately to another person, the interpreter’s statements should be admitted.

C. Judges Are Well-Equipped to Exercise Discretion to Admit Interpreters’ Statements

 If Kansas courts decide that an interpreter’s statements can be admitted under Kan. Stat. Ann. § 60-460(d)(1), trial court judges can readily decide whether any given interpreter’s statement is contemporaneous.  Trial court judges routinely use their discretion to resolve issues regarding the admissibility of evidence,[43] including whether a statement should be admitted under Kan. Stat. Ann. § 60-460.[44]  Regarding Kan. Stat. Ann. § 60-460(d)(1), the Kansas Supreme Court has recognized that trial court judges have discretion to determine if a particular statement meets the requirement that the statement be a spontaneous “reaction to contemporary perception” of an event.[45]  Thus, if an interpreter’s statement is not contemporaneous for some reason, the trial judge can exercise his or her discretion to keep the statement out of evidence. For example, a trial judge may decide to keep a statement out of evidence if the interpreter is not sufficiently fluent and thus required more time to process and reconvey the message.[46]  But where an interpreter can interpret statements as the Spanish-speaking person speaks, judges could admit such statements.

IV. Conclusion

 Kansas courts should interpret the Kan. Stat. Ann. § 60-460(d)(1) exception to include interpreters’ statements because such an interpretation would be consistent with the text of the statute, would avoid some of the concerns the Kansas Supreme Court identified in Gutierrez-Fuentes, and would allow judges to use their discretion to decide whether an interpreter’s statements are contemporaneous.

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[1]  The preceding factual situation is adapted from the facts of State v. Gutierrez-Fuentes, 508 P.3d 378, 382, 387 (Kan. 2022). While Gutierrez-Fuentes was a criminal case, the factual situation presented above is a civil case to avoid Sixth Amendment Confrontation Clause issues.

[2]  Kan. Stat. Ann. § 60-460 (Supp. 2022).

[3]  “Present-sense-impression” is a shorthand way to refer to hearsay exceptions like Kan. Stat. Ann. § 60-460(d)(1). See Fed. R. Evid. 803(1) (defining “Present Sense Impression” to mean “[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it”).

[4]  Kan. Stat. Ann. § 60-460(d)(1).

[5]  State v. Rowe, 843 P.2d 714, 718 (Kan. 1992) (quoting 1 Spencer A. Gard, Kansas Code of Civil Procedure, Annotated § 60-460(d) (2d ed. 1979)).

[6]  See 508 P.3d at 388–89 (identifying concerns with admitting an interpreter’s statements as the Spanish-speaking declarant’s own statements).

[7]  Cf. Amos v. State, 896 N.E.2d 1163, 1168–69 (Ind. Ct. App. 2008) (finding “hearsay . . . within hearsay” where a murder victim’s statement to a witness conveyed a statement by the defendant, but then finding that each statement fell “under an exception to the hearsay rule”).

[8]  For example, in State v. Gutierrez-Fuentes, the Spanish-speaking declarant’s own statements could have been admitted under Kan. Stat. Ann. § 60-460(a) because the Spanish-speaking declarant “was present [at trial] and subject to cross-examination.” 508 P.3d 378, 389 (Kan. 2022) (citing Kan. Stat. Ann. § 60-460(a) (Supp. 2020)).

[9]  See James M. Concannon, Kan. Bar Ass’n, 2023 Kansas Annual Survey § 13-2 (2024) (noting that, “even if a hearsay exception applied, there would be a constitutional issue whether the interpreters’ statements to the police officer were ‘testimonial,’ so that their admission without a prior opportunity for defendant to cross-examine the interpreters would violate the defendant’s Sixth Amendment right of confrontation”).

[10]  Gutierrez-Fuentes, 508 P.3d at 387–89.

[11]  Kan. Stat. Ann. § 60-460(a) (Supp. 2022).

[12]  Gutierrez-Fuentes, 508 P.3d at 387.

[13]  Id.

[14]  Id. at 389.

[15]  Id. at 389 (quoting United States v. Charles, 722 F.3d 1319, 1324 (11th Cir. 2013)).

[16]  Id. at 388–89.

[17]  See Concannon, supra note 9 (noting that the prosecution in Gutierrez-Fuentes did not try to admit the interpreter’s statements under other hearsay exceptions, such as Kan. Stat. Ann. § 60-460(d)(1)).  This forum post builds on Concannon’s suggestion that another hearsay exception may apply by making an argument that Kan. Stat. Ann. § 60-460(d)(1) applies.

[18]  Gutierrez-Fuentes, 508 P.3d at 389.

[19]  See, e.g., Palacios v. State, 926 N.E.2d 1026, 1032 (Ind. Ct. App. 2010); United States v. Kramer, 741 F. Supp. 893, 896 (S.D. Fla. 1990); United States v. Abell, 586 F. Supp. 1414, 1425 (D. Me. 1984).

[20] See Concannon, supra note 9.

[21]  S.B. 72, 2023 Leg., 2023 Reg. Sess. (Kan. 2023), https://www.kslegislature.org/li/b2023_24/measures/documents/sb72_00_0000.pdf (last visited Mar. 29, 2024).

[22]  Concannon, supra note 9.

[23]  See SB 72, Kansas Legislature, https://www.kslegislature.org/li/b2023_24/measures/sb72/ (last visited Mar. 29, 2024).

[24]  Kan. Stat. Ann. § 60-460(d)(1) (Supp. 2022).

[25]  Because there are two people speaking—the interpreter and the person whose statements are being interpreted—“interpreter” will be used to denote the declarant who is interpreting and, because the example in the introduction happens to involve a Spanish speaking declarant, “Spanish-speaking person” will denote the declarant whose statements are being interpreted.

[26]  Kan. Stat. Ann. § 60-459(c) (LEXIS through 2024 Reg. Sess.).

[27]  Cf. Amos v. State, 896 N.E.2d 1163, 1169 (Ind. Ct. App. 2008) (noting that “a person perceives, through listening, the words of the other party” during “a telephone conversation”).   

[28]  See Statutory Construction, Legal Information Institute, https://www.law.cornell.edu/wex/statutory_construction (last visited Mar. 29, 2024) (noting that courts may consider dictionaries when engaging in statutory interpretation).

[29]  Event, Merriam-Webster, https://www.merriam-webster.com/dictionary/event (last visited Mar. 29, 2024).

[30]  Describe, Merriam-Webster, https://www.merriam-webster.com/dictionary/describe (last visited Mar. 29, 2024).

[31]  Sarah Stevens, Comment, Invisible Touch: Analyzing the Language Conduit Theory Through the Lens of Translation and Interpreting Principles, 88 UMKC L. Rev. 771, 774 (2020).

[32]  State v. Gutierrez-Fuentes, 508 P.3d 378, 387–89 (Kan. 2022).

[33]  Id. at 389.

[34]  See Kan. Stat. Ann. § 60-460(d)(1) (Supp. 2022) (admitting statements where declarant “perceiv[ed] the event”).

[35]  Gutierrez-Fuentes, 508 P.3d at 389.

[36]  See supra notes 15-16 and accompanying text.

[37]  Cf. Kan. Stat. Ann. § 60-460(d)(1) (admitting declarant’s statements where the declarant made the statement as they “perceiv[ed] the event or condition which the statement narrates, describes or explains”).

[38]  See id.

[39]  See supra note 16.

[40]  State v. Rowe, 843 P.2d 714, 718 (Kan. 1992) (quoting 1 Spencer A. Gard, Kansas Code of Civil Procedure, Annotated § 60-460(d) (2d ed. 1979)).

[41]  See State v. Dessinger, 958 N.W.2d 590, 600 (Iowa 2021) (discussing a statute containing language similar to Kan. Stat. Ann. § 60-460(d)(1) and noting that “the further a declarant is from the event, the more likely the declarant is to misstate or fabricate”).

[42]  See Palacios v. State, 926 N.E.2d 1026, 1032 (Ind. Ct. App. 2010).

[43]  See, e.g., Parsons v. Biscayne Valley Invs. Ltd., 935 P.2d 218, 224 (Kan. Ct. App. 1997) (“The admission of evidence is a matter of trial court discretion.”); Warren v. Heartland Auto. Servs., 144 P.3d 73, 76 (Kan. Ct. App. 2006) (“The qualification of experts and the admissibility of their testimony are discretionary matters for the trial court.”).

[44]  See State v. Ninci, 936 P.2d 1364, 1385 (Kan. 1997).

[45]  State v. Rowe, 843 P.2d 714, 718 (Kan. 1992) (quoting 1 Spencer A. Gard, Kansas Code of Civil Procedure, Annotated § 60-460(d) (2d ed. 1979)).

[46]  Cf. Concannon, supra note 9 (noting that “[w]hether the [Kan. Stat. Ann. § 60-460(d)(1)] exception applies would turn on a determination whether the process of translation is so dependent on the skill of the interpreter and requires such conscious reflection and analysis by the interpreter . . . that the process is inconsistent with the ‘play-by-play’ rationale of trustworthiness that justifies the” exception).