397 P.3d 547
Or. Ct. App.2017Background
- Defendant was charged with multiple sexual offenses after his stepdaughter A reported long‑term abuse; A recanted at trial.
- At a recorded police interview, defendant spoke Spanish and used a police interpreter who translated his statements into English; the recording and transcript were offered at trial.
- Pretrial, defense objected that the interpreter’s out‑of‑court English translations were hearsay (a second level of hearsay) and that the State failed to meet residual‑hearsay notice requirements.
- The trial court overruled the hearsay objection, ruling the translations were admissible as defendant’s own statements (party‑opponent nonhearsay) because the interpreter’s work merely relayed the defendant’s words.
- The jury heard the translated recording and transcript and convicted defendant; on appeal he argued the translations were inadmissible hearsay and that their admission was prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interpreter’s out‑of‑court English translations are hearsay | Translations are nonhearsay because interpreter merely mirrored defendant’s statements; alternatively admissible under residual exception or as agent/authorized speaker | Translations are an additional out‑of‑court assertion (double hearsay) and not covered by party‑opponent rule absent an exception | The translations constitute hearsay; trial court’s ruling that defendant remained declarant was erroneous |
| Whether State can defend admission on agency/authorization theories not argued at trial | (not argued below) | Admission should be upheld because interpreter acted as defendant’s agent/representative, making translations nonhearsay | Court refused to consider newly raised agency/authorization theories on appeal because they were not argued at trial |
| Whether erroneous admission of translations was harmless | Translations were cumulative or corroborated by other evidence | Admission was prejudicial because the English confession was central and otherwise unavailable to jury | Error was not harmless; admission likely affected jury verdict |
| Whether interpreter’s testimony could render translated exhibits nonhearsay demonstratives | (implicit in State’s in‑court proof of accuracy) | Interpreter’s in‑court testimony established translation accuracy so exhibit showed "what was said," not truth of translation | Majority rejected this view; dissent argued translator’s in‑court testimony would have made exhibits nonhearsay but court reversed and remanded |
Key Cases Cited
- State v. Montoya‑Franco, 250 Or. App. 665 (translation is hearsay because interpreter’s translation is an assertion of English meaning)
- State v. Rodriguez‑Castillo, 345 Or. 39 (translated statements constitute double hearsay and are admissible only if an exception applies)
- Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634 (appellate courts should not affirm on grounds not raised below when record is inadequate)
- Arnold v. Burlington Northern Railroad, 89 Or. App. 245 (a recording or demonstrative evidence is nonhearsay when accuracy is established by witness testimony)