Vanderbilt Law Review


Tom S. Xu

First Page



A foreign traveler flies into John F. Kennedy International Airport, supposedly on a business trip. At the airport, a customs inspector detains him after discovering what appear to be bags of cocaine concealed in his luggage. The traveler speaks limited English, so the inspector requests the aid of a certified government interpreter to question him. An English-speaking Drug Enforcement Administration ("DEA") agent thereafter interrogates the traveler by having the interpreter translate his questions to Spanish, the traveler's native tongue. The interpreter then translates the traveler's responses from Spanish to English, and the inspector records the translated responses. At trial, the court denies the traveler's motion to suppress his statements to the customs inspector and DEA agent. The jury subsequently convicts him. This fact pattern comes from an influential Second Circuit case illustrating an evidentiary tool long used by courts to assess the reliability of out-of-court, translated statements offered against criminal defendants. Popularly referred to as the "language conduit theory," this tool allows courts to infer an agency relationship between a defendant and an interpreter for hearsay purposes if certain factors are met. These factors vary among the federal circuits but generally aim to ensure that translations are reliable. For instance, courts often ask if the interpreter had a motive to mislead or if there is reason to believe that the translation is inaccurate. If the facts suggest that the statements are reliable, then they are admissible as nonhearsay under Federal Rules of Evidence 801(d)(2)(C) or (D).

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