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Confrontation and the Law of Evidence: Can the Language Conduit Theory Survive in the Wake of Crawford?

Posted by on Friday, October 17, 2014 in Notes, Volume 67, Volume 67, Number 5.

Confrontation and the Law of Evidence: Can the Language Conduit Theory Survive in the Wake of Crawford?


The interrogation of non-English-speaking defendants by government officials usually requires the aid of an interpreter. In the event that the interpreter is unavailable to testify to the truth of his translations in court and a third-party witness testifies in his place, the Sixth Amendment’s Confrontation Clause would ordinarily prevent admission of such evidence absent the opportunity for the defendant to confront the interpreter. But historically, courts have circumvented this constitutional requirement by invoking the language conduit theory, which directly attributes the interpreter’s statements to the defendant himself if certain reliability factors are met. In Crawford v. Washington, a landmark 2004 decision, however, the Supreme Court overhauled its Confrontation Clause jurisprudence by requiring confrontation whenever “testimonial statements” are offered against the defendant unless the witness who made the statements is unavailable to testify and the defendant has had an opportunity to confront the witness. The Note examines the validity of the language conduit theory in light of Crawford and determines that it is no longer viable for testimonial statements. The Note therefore proposes a two-prong test to determine when the Confrontation Clause should apply to out-of-court, translated statements.


J.D. Candidate, Class of 2015, Vanderbilt University Law School; B.A. Economics, 2008, University of California Berkeley. I would like to thank Professor Nancy King for giving me this topic idea and guiding my early research efforts. I would also like to thank the entire staff of the Vanderbilt Law Review, but especially Alex Ellman, Mary Julia Hannon, Kimberly Ingram, Mary Catallini Nicoletta, and Courtney Mitchell for their excellent comments on this Note.