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Note - Machine Translator Testimony & the Confrontation Clause: Has the Time Come for the Hearsay Rules to Escape from the Stone Age?


In a digital-crazed world, new problems inevitably emerge as technology advances and the law struggles to keep pace. A potential problem lurks in the shadows for non-English-speaking people who have contact with the police: the use of machine translators that can either facilitate or impede the ability of non-English-speaking witnesses, suspects, and defendants to understand and exercise their constitutional rights. Many scholars and courts have disagreed whether a non-English-speaking defendant’s translated statements can be used against him or her without an opportunity to cross-examine the translator. Scholars and courts have also wrestled with whether machines are declarants and subject to confrontation. This Note bridges these two unsettled issues of law and focuses on a potential problem that the Federal Rules of Evidence do not address: whether machine translators that translate for non-English-speaking criminal defendants are declarants under the hearsay rules and whether the Confrontation Clause of the Sixth Amendment affords defendants the right to confront this machine-generated testimony. This Note argues that the Advisory Committee on Evidence Rules should amend the hearsay rules to provide that, because machine translation poses an increased risk of error and the Confrontation Clause’s purpose is to establish that evidence is reliable, machine translators should not be allowed to speak for non-English-speaking defendants and defendants should be entitled to confront this machine translator testimony.