The Language Conduit Rule: Admitting Interpreters’ Hearsay Statements in Kansas

Author: Cayce Good, Staff Editor

State v. Gutierrez-Fuentes, No. 120,339, (Kan. Ct. App., Nov. 25, 2020)

Issue:  Under Kan. Stat. Ann. § 60-460, statements made by a person other than a witness testifying in court are considered inadmissible hearsay unless they fall within an exception.[1]  Are statements made by an interpreter admissible, despite the interpreter not being available for cross-examination?

Answer: Yes.

Facts:  Two plaintiff-witnesses, Myers and Hess, testified about statements made by a third witness, D.S., in court.  D.S. made these statements to them through an interpreter.  The interpreter was not available to testify at trial, nor was the interpreter subject to cross-examination.  When Myers and Hess testified about the interpreter’s statements, Gutierrez-Fuentes objected on the grounds that the statements were inadmissible hearsay.  The district court took notice of these objections but admitted the statements at trial.

Discussion:  The language conduit rule allows an interpreter’s statements to be admitted into evidence as an exception to the hearsay rule.  This exception is triggered when the relevant factors suggest the interpreter is merely a language conduit and the translation of the statements are viewed as the declarant-witness’s own.  The relevant factors include, but are not limited to, which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter’s qualifications and language skill, and whether actions taken subsequent to the conversation were consistent with the statements as translated.[2] 

The Kansas Supreme Court previously provided guidance that supports the adoption of the language conduit rule in State v. Van Pham.  In that case, the court stated that interpreters are more than mere witnesses and are presumed to have acted regularly in the performance of their duty.[3]  Absent an unusual finding by the district court, the language conduit rule will apply. 

Key Authorities:

Kan. Stat. Ann. § 60-460 (Supp. 2019) (providing the definition of hearsay in Kansas),

U.S. v. Orm Hieng, 679 F.3d 1131 (9th Cir. 2012) (explaining the relevant factors that are considered for determining whether an interpreter’s statements should be admitted),

State v. Van Pham, 234 Kan. 649 (1984) (supporting the admission of interpreter statements absent unusual circumstances).

[1]  Kan. Stat. Ann. § 60-460 (Supp. 2019).

[2]  U.S. v. Orm Hieng, 679 F.3d 1131, 1139 (9th Cir. 2012) (quoting U.S. v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991).

[3]  State v. Van Pham, 234 Kan. 649, 662 (1984).

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