A "novel and difficult" constitutional question — one neither the U.S. Court of Appeals for the Eleventh Circuit nor the United States Supreme Court had ruled on before — was answered by the Eleventh Circuit in a case handled by a University of Miami law clinic.

The court found a defendant has the right to confront the foreign language interpreter about statements to law enforcement during interrogation because the interpreter is the declarant of the translations, which are testimonial in and of themselves.

In other words, the government can't hold the translated version of answers against a defendant by merely calling a law enforcement witness to recount the interpreter's responses to his questions.

Although the Eleventh Circuit ultimately affirmed because there was no plain error by the trial court, the court's holding will impact future criminal cases at every stage — from investigation to trial through appeal — against defendants who require translators.

CUSTOMS REVIEW

While teaching criminal procedure and evidence classes in 2009, UM law professor Ricardo J. Bascuas set in motion what would become the law school's federal appellate clinic.

Over a semester, students work in pairs on 12 indigent appeals referred from the federal public defender's office.

One case was that of Manoucheka Charles, a Haitian national convicted in July 2012 of knowingly using a fraudulently altered travel document.

Bascuas assigned Charles's case to former law students Jodi A. Pandolfi and Nicholas Williams.

Pandolfi, now an associate with Higher Lichter & Givner in Aventura, said, "The clinic provided practical, hands-on training unlike any other that I experienced in law school. I left law school better prepared to enter the professional world because of my experience with the clinic."

Williams recently took The Florida Bar exam and will join Foley & Lardner in Tampa as an associate in October. He shared similar sentiments on the clinic and but acknowledged, "I definitely wasn't expecting our case to go before an Eleventh Circuit panel."

On May 21, Williams and Pandolfi took their seats at counsel's table to assist Bascuas, who argued before the panel in Miami. Bascuas said the Eleventh Circuit policy doesn't permit law students to argue before the court.

The case began a year earlier, nearly to the day.

Charles arrived at Miami International Airport on May 28, 2012. After the first Customs and Border Protection officer inspected her documents at the gate, he sent her to a primary passport control station.

A second officer then inspected Charles's Haiti-issued passport, customs declaration and Form I-512. The database revealed a discrepancy — her name and date of birth didn't match the record for the form.

Charles met with a third and final officer, whose testimony was the only evidence on whether Charles knew the form was fraudulent.

EVIDENCE OF TAMPERING

The third officer, Calvin Blake, discovered the alien registration number was issued the previous year to a man. He also found signs of physical tampering on the forms.

Since Blake couldn't speak Creole and Charles couldn't speak English, Blake called a Lazar & Associates language center, a government contractor, to have an interpreter assist with the questioning by phone.

Charles's attorneys and the government entered into a stipulation concerning the interpreter: "Mrs. Martine is a Creole interpreter working for Lazar & Associates Translating Interpreting Services. On May 29, 2012, Mrs. Martine, who speaks fluent English and Creole, interpreted the defendant's interview with Customs and Border Protection Officer Calvin Blake."

Martine was not called as a trial witness.

Instead, the government called Blake to establish Charles's answers, which the district court admitted and the jury found credible.

Blake testified the interpreter said Charles explained, "When she sat down on the plane, she started reading the document, and she noticed that the document was illegal because it didn't fit her profile."

Pandolfi and Williams spotted the issue. The trial attorneys didn't make the argument, so the only way the Eleventh Circuit would reverse would be if the trial court made a plain error. The panel found none.

RIGHT TO CONFRONTATION

After class discussions, Pandolfi and Williams briefed the case independently and worked with Bascuas to draft the final version.

Their argument was twofold: an interpreter's account of what an accused said was hearsay under common law unless the defendant selected the interpreter, and the interpreter's account of what Charles said during questioning was testimonial because the interpreter was selected and hired by the government to participate in the gathering of evidence to be used in the criminal prosecution.

In its brief, the government dismissed the common law argument, and the three "obscure" cases on which it was based, arguing, "The law of this circuit is that the interpreter is treated as the agent of the defendant and that the defendant's statements are admitted into evidence as nonhearsay admissions, provided that the interpreter has sufficient capacity and no motive to misrepresent."

The three-judge panel concluded Charles's Sixth Amendment right to confrontation was violated but

Writing for the panel, Barkett said, "Because the government did not call the interpreter as a witness, Charles did not have an opportunity to cross-examine the interpreter regarding what any of Charles's purported statements meant or what specific words or phrases Charles actually used."

She explained, in the words of the U.S. Supreme Court, "Where testimonial statements are involved, we do not think the framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of reliability."

Marcus specially concurred while acknowledging, "The majority makes a serious and substantial argument for its position, and it may well be right. But I would wait until the necessity of deciding the question sharpens both the adversarial presentation of the issue and our decision-making process."