Taylor v. State ( 2016 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2686
September Term, 2013
CLARENCE CEPHEUS TAYLOR, III
v.
STATE OF MARYLAND
Krauser, C.J.,
Wright,
Arthur,
JJ.
Opinion by Arthur, J.
Filed: January 27, 2016
This appeal concerns whether a deaf criminal defendant has the constitutional
right to confront the interpreter who interpreted his statements during a police
interrogation, when the State offers those interpretations as evidence against him in a
criminal prosecution.
Clarence Cepheus Taylor III, who is deaf, was arrested on the allegation that he
had sexually abused minors. With the aid of sign-language interpreters, detectives
interrogated him for almost five hours. Over Taylor’s objection at trial, the court
admitted a recording that included audio of an interpreter’s English-language
interpretations of Taylor’s sign-language statements. A jury found Taylor guilty of
abusing two of the seven complaining witnesses.
Foremost among the issues raised in this appeal, Taylor contends that under
Crawford v. Washington, 541 U.S. 36 (2004), the admission of the interpreter’s
statements violated his constitutional right to be confronted with the witnesses against
him. His contention is correct, and the judgments must be reversed.
FACTUAL AND PROCEDURAL BACKGROUND
A. Taylor’s Supervisory Role at the Maryland School for the Deaf
Taylor was born without the ability to hear. He communicates primarily through
American Sign Language (ASL). He can read and write in English, but he does not speak
English or understand spoken English.
In 2001, Taylor began working as a Student Life Counselor at the Columbia
campus of the Maryland School for the Deaf. The Columbia campus, which serves
students from pre-kindergarten through eighth grade, provides a residential dormitory to
accommodate students who live far away from the facility. Taylor typically supervised
groups of five or six male students in the afternoons and evenings. He later took on
additional responsibilities as an after-school coordinator and basketball coach for both
boys and girls.
Taylor’s employment came to an end in the fall of 2012. In November of that
year, the School received a report from four female students, De., M., P., and S., who
claimed that Taylor had touched them inappropriately at the Columbia campus between
2008 and 2011. The School placed Taylor on forced leave and reported the accusations to
the Howard County police.
B. Criminal Investigation by Howard County Police
Detective Penelope Camp served as lead investigator. Based on the results of her
interviews of three students, she arrested Taylor and brought him to the police station for
questioning on December 6, 2012. The nearly five-hour interrogation was recorded by
video cameras and microphones.
Because Detective Camp is unable to use or understand sign language, she
arranged for a team of two interpreters to facilitate the questioning: Mr. Joe L. Smith, an
ASL interpreter who could hear the detective’s questions; and Ms. Charm Smith, a
Certified Deaf Interpreter (CDI) who could not hear the questions. The detective asked
questions in English, which the interpreters conveyed to Taylor through sign language;
Taylor responded in sign language; the two interpreters converted his responses into
English; and then Mr. Smith provided his spoken English interpretations of what Taylor
had said in sign language. This collaborative interpretation process is known as relay
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interpretation or intermediary interpretation. State v. Wright, 768 N.W.2d 512, 518 n.2
(S.D. 2009) (citing Linton v. State, 275 S.W.3d 493, 510 (Tex. Crim. App. 2009)
(Johnson, J., concurring)); see also Vasquez v. Kirkland, 572 F.3d 1029, 1032-33 (9th Cir.
2009).1
Through the interpreters, Detective Camp informed Taylor that he had “the right to
remain silent,” that “anything [he] sa[id] may be used against [him],” and that he had the
right to have an attorney present. Taylor briefly inquired about the meaning of “the right
of getting a counsel.” Taylor then read and signed a written Miranda waiver form,
indicating that he understood and voluntarily waived those rights.
Detective Camp told Taylor that his arrest was related to his conduct in his former
role as a dorm counselor at the Maryland School for the Deaf. The detective stated that
multiple students had accused Taylor of touching their breasts or buttocks on numerous
occasions, of kissing them, and of exchanging intimate text messages with them. Before
the detective had provided the names of the accusers, Taylor brought up students named
Da., S., and M., two of whom were among the initial complainants. Later, the detective
asked specific questions about De. and P.
Through the interpreter, Taylor at first denied making any inappropriate physical
contact with students. He stated that he may have made accidental contact with someone
1
The Maryland Rules recognize relay or intermediary interpretation: “a deaf
person who uses an idiosyncratic variation of sign language may require that a deaf and
hearing interpreter be used as a team.” Md. Rules App’x: Explanations of Responses to
Voir Dire Questions for Interpreters, Question 18 (2015). “Deaf people with limited
English or American Sign language skills often benefit from this type of arrangement.”
Id.-3-
in the school hallways, which he described as crowded and narrow at certain points. He
also stated that he would sometimes greet students with a handshake combined with a
hug and that it was possible that his hand could have brushed against a person’s chest.
He admitted that he had exchanged text messages with a number of students and that
some female students had sent him revealing photographs.
According to the interpreter’s account of Taylor’s statements, Taylor also stated
that on specific instances he had accidentally touched particular girls. For example,
according to the interpreter, Taylor admitted that he actually had touched Da. on the
buttocks, but that he had done so by accident and had immediately apologized to her. In
another instance, the interpreter reported that Taylor gave this response to questions about
touching De.’s breast: “Right, I mean, maybe it was the brushing like everything else but
it wasn’t an intentional touch or anything. It was accidental. It wasn’t, maybe it wasn’t a
complete hug.” At trial and on appeal, Taylor has contested the accuracy of the
interpreter’s assertion that he admitted to specific incidents of inappropriate touching: he
contends that he never admitted to having actually touched any of the young women’s
breasts or buttocks, but merely to have stated that if he had done so, it would have been
an accident, for which he would have apologized.
At the detective’s request, Taylor handwrote five short letters of apology addressed
to Da., De., M., P., and S. Each letter expressed remorse and asked for forgiveness
without describing any of Taylor’s actual conduct. For instance, in his letter to Da.,
Taylor wrote: “I said really am sorry about you. I know that you dislike talk to me. I said
so sorry about it situation. I wonder you can forgive me no matter what! . . . I want to
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say to you ‘Sorry’!”
When he finished writing, Taylor, through the interpreters, asked: “I wanted to
know is the lawyer going to be coming to meet with me or can I ask for a lawyer now?”
At that point, Detective Camp ended the questioning.
C. Pre-Trial Proceedings
On January 16, 2013, the State filed seven indictments against Taylor. Each
indictment corresponded to one of seven complainants: Da., De., K., M., P., S., and T.2
The State charged Taylor with one count of sexual abuse of a minor for each of the
minors. See Md. Code (2001, 2012 Repl. Vol.), Criminal Law Art., § 3-602(b)(1) (“A . . .
person who has permanent or temporary care or custody or responsibility for the
supervision of a minor may not cause sexual abuse to the minor”); id. § 3-602(a)(4)(i)
(“‘Sexual abuse’ means an act that involves sexual molestation or exploitation of a minor,
whether physical injuries are sustained or not”). The State also charged Taylor with four
counts of solicitation of child pornography. Id. § 11-207(a).
When Taylor’s defense counsel first entered his appearance, he filed a generic
“Omnibus Pre-Trial Defense Motion” that included a comprehensive list of unspecific
and unsupported requests for relief. The State arranged for the detectives and the two
sign-language interpreters from the interrogation to testify at the motions hearing. After
the hearing was postponed for cause, however, Taylor’s attorney failed to appear on the
rescheduled hearing date. An attorney with no knowledge of the case appeared for the
2
After Taylor’s arrest, Detective Camp interviewed K. and T., two additional
students whose names were later provided by the School.
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sole purpose of requesting a postponement. After the court declined to postpone the
hearing, the attorney withdrew all of Taylor’s pre-trial motions.
The court then denied a written motion for another hearing on the issue of whether
Taylor’s statements to police should be suppressed. Taylor later filed a motion to sever,
which the court also denied after a hearing.
D. The State’s Case Against Taylor
A jury trial on all charges against Taylor commenced on October 28, 2013, and
continued for nearly three weeks. Because the defendant and many of the witnesses are
deaf, much of the testimony was communicated through court-appointed interpreters.3
The female students themselves were the primary witnesses against Taylor. Each
of the seven students testified about specific instances of Taylor’s inappropriate touching
while they were under his supervision. According to many of the State’s witnesses,
Taylor used handshakes and hugs that are similar to other greetings commonly used at the
Maryland School for the Deaf. While none of the witnesses disputed that touching plays
an important role in communication among the deaf community, particularly for greetings
or to get a person’s attention,4 the students claimed that Taylor performed the embraces in
an unusual manner.
3
See generally Md. Code (1974, 2013 Repl. Vol.), Courts and Judicial
Proceedings Art., § 9-114; Md. Code (2001, 2008 Repl. Vol.), Criminal Procedure Art.,
§§ 1-202, 3-103; Md. Rule 1-333.
4
See, e.g., Maryland Governor’s Office of the Deaf and Hard of Hearing, NETAC
Tipsheet: Deaf Culture, available at http://odhh.maryland.gov/wp-content/uploads/sites/
13/2014/10/TipsheetDeafCulture.pdf (last visited Dec. 23, 2015).
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The other main source of evidence against Taylor was the recording of Taylor’s
interrogation. The recording included video of the sign-language communications
between Taylor and the interpreters, as well as audio of the statements by the ASL
interpreter, Mr. Smith, interpreting what Taylor had said in sign language. The State
called Detective Camp to establish a foundation for admitting the recording with an
accompanying transcript.
Taylor objected to the admission of the interpreter’s words through the detective’s
testimony. He requested that the State call the interpreter, Mr. Smith, to verify his
interpretations of what Taylor had told him. His counsel argued that “based on the
Confrontation Clause” Taylor had the right to “confront the person who is saying these
things” on the recording and to cross-examine “Mr. Joe Smith, as an interpreter
interpreting what [Taylor] is saying.” After commenting briefly that an interpreter was
“not an accuser,” the court overruled the objection. The detective then testified about
some of the things that Taylor “said” to her in the interrogation even though she heard his
words only as reported or interpreted by Smith.
Taylor renewed his objection immediately before the State attempted to play the
recording for the jurors. At that point, defense counsel asked the court to direct one of
the sworn court interpreters to give a live interpretation of Taylor’s sign-language
responses, rather than permit the jury to hear the account of an absent witness, Smith,
about what Taylor had said. The defense also asked “to put on the record” that in United
States v. Charles, 722 F.3d 1319 (11th Cir. 2013), the United States Court of Appeals held
that a defendant has the right to cross-examine an interpreter who interpreted the
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defendant’s statements in a police interrogation. The court overruled the renewed
objection.
The court then permitted the State to play the nearly five-hour recording. The
State provided jurors with an audio transcript that Detective Camp had prepared. The
first page noted that “throughout the interview, all statements attributed to both Clarence
Taylor and [Certified Deaf Interpreter] Charm Smith are as interpreted through Joe
Smith.” The jurors received copies of the transcript with a cautionary instruction that
they should consider only the video and audio as evidence.5
E. Taylor’s Defense and the Conclusion of Trial
Taylor took the stand as the only witness in his defense. He denied any
inappropriate touching of students. He testified that he could accidentally have made
contact with a student’s breasts or buttocks, but that he would have apologized if he had
done so.
With respect to the statements attributed to him by the interpreter, Taylor
repeatedly asserted that there were many “misinterpretations” and “miscommunications”
between him and the interpreters. Taylor claimed that he had difficulty communicating
with Smith at the beginning of the interview and that he had asked to have an attorney
present during questioning. Taylor also claimed that he had never admitted during the
interrogation to any specific instance of physical contact with a student.
5
The State elicited testimony that Taylor requested photos of students through text
messages and that some of the students replied with photos of themselves. The State
withdrew the charges of solicitation of child pornography at the end of its case-in-chief.
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The following exchange occurred during the State’s cross-examination of Taylor:
Q: [D]uring your interview with [Detective Camp], you stated several
times that you did touch these girls but it was an accident. Correct?
A: Well, let me clarify that first. There’s some misunderstandings in
that video. What I said is that it could have happened and if it did, it
would have been an accident. I said it could have happened.
The prosecutor asked Taylor to explain specific portions from the transcript in
which the interpreter said that Taylor had said that he had apologized to specific students
after accidentally touching them. Taylor consistently responded that the interpreter had
not correctly interpreted his sign-language statements. He testified that he told the
interpreters that, if he had touched anyone, it would have been an accident, and he would
have apologized.
In its closing argument, the State encouraged the jury to “[r]eally analyze th[e]
interview.” The prosecutor argued that the jury should conclude that Taylor voluntarily
made all of the statements attributed to him by the interpreter.” She further contended
that Taylor’s assertions that the interpreters made errors were not credible. Although the
prosecutor encouraged the jury to disbelieve many portions of Taylor’s responses from
the interrogation, she pointed out that “finally towards the end of [the interview], he
acknowledge[d] what he did,” when the interpreter reported Taylor as admitting that he
had touched the students, but claimed to have done so accidentally.
During its closing argument, the defense asked the jurors to remember that they
“never heard from the actual interpreter.” The State objected, and the court sustained that
objection. Defense counsel then commented that, in assessing the weight of the
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interpreted statements, the jury should consider that the interpreter had been paid by the
police. The State then raised an “ongoing objection to any mention of the interpreters
during that interview.” The court sustained the objection once again, asserting that it was
“not relevant” that the interpreter had been solicited by the police. The judge then
instructed the jury that it could not consider “the last two comments [from defense
counsel] concerning the interpreter.”
After several days of deliberation, the jury reached a verdict as to three of the
seven charges. The jury found Taylor guilty of sexually abusing two victims: Da. and De.
The jury acquitted Taylor of the sexual abuse charge related to K. The jurors were unable
to reach a verdict on the remaining counts for sexual abuse of P., M., S., or T.
The court denied Taylor’s motion for new trial and sentenced him on January 31,
2013. The court imposed two consecutive sentences of 15 years of imprisonment, with
all but three-and-a-half years of each sentence suspended, for a total term of seven years
of incarceration. Taylor took a timely appeal from those judgments.
QUESTIONS PRESENTED
Taylor now presents the following questions to this Court:
1. Was [Taylor’s] constitutional right to confrontation violated when he
was not given the opportunity to cross[-]examine the interpreter used
by the police during his interrogation?
2. Did the trial court err in denying [Taylor’s] requests for
postponement and to reschedule a hearing on his motion to suppress
statements?
3. Did the trial court err in joining the seven charges against [Taylor]
into one trial?
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4. Did the trial court err in refusing to permit [Taylor] to cross-examine
the victims’ parents about their pursuit of a civil suit?
5. Did the trial court err in denying [Taylor’s] requests to subpoena
witnesses?
Answering the first question, we conclude that the trial court committed reversible
error when it admitted the interpreter’s extrajudicial account of Taylor’s statements after
Taylor had asserted his rights under the Confrontation Clause. We shall address the
remaining issues to the extent that they are likely to recur at Taylor’s second trial.
DISCUSSION
I.
Taylor contends that the trial court erred when it admitted Smith’s English-
language interpretations of Taylor’s sign-language statements. According to Taylor, the
admission of the interpreted statements, under circumstances where he had no
opportunity to cross-examine the interpreter during the State’s case against him, violated
his constitutional right to be confronted with the witnesses against him.
We review the ultimate question of whether the admission of evidence violated a
defendant’s constitutional rights without deference to the trial court’s ruling. See Hailes
v. State, 442 Md. 488, 506 (2015) (applying de novo standard of review to appeal based
on Confrontation Clause).
A. Constitutional Right of Confrontation in Criminal Proceedings
The Sixth Amendment to the United States Constitution provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him[.]” In this context, confrontation means more than simply a face-to-face
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meeting between accusers and the accused. Davis v. Alaska, 415 U.S. 308, 315 (1974).
The “main and essential purpose” of the Confrontation Clause is to ensure that the
defendant has an opportunity for effective cross-examination of adverse witnesses,
“which cannot be had except by the direct and personal putting of questions and
obtaining immediate answers.” Id. at 315-16 (citations and quotation marks omitted).
During an in-person cross-examination, “the accused has an opportunity, not only of
testing the recollection and sifting the conscience of witnesses, but of compelling him to
stand face to face with the jury in order that they may look at him, and judge his
demeanor upon the stand and in the manner in which he gives his testimony whether he is
worthy of belief.” Mattox v. United States, 156 U.S. 237, 242-43 (1895).
Because the safeguard of cross-examination is essential to a fair trial, the right of
confrontation is a fundamental right that applies during state as well as federal
prosecutions. Pointer v. Texas, 380 U.S. 400, 403 (1965).
In Maryland, the constitutional right of confrontation predates the federal
Constitution. Article XIX of the Maryland Declaration of Rights of 1776 declared that
“in all criminal prosecutions, every man hath a right . . . to be confronted with the
witnesses against him[] . . . [and] to examine the witnesses for and against him on
oath[.]” Identical language is currently embodied in Article 21 of the Maryland
Declaration of Rights. Maryland’s confrontation right is interpreted to “generally
provid[e] the same protection to defendants” as its federal counterpart. Derr v. State, 434
Md. 88, 103 & n.11 (2013) (citations omitted), cert. denied, 134 S. Ct. 2723 (2014); see
Cooper v. State, 434 Md. 209, 232 (2013).
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The dual confrontation clauses of the Bill of Rights and the Maryland Declaration
of Rights focus upon a singular category of persons: the “witnesses against” a defendant.
This group naturally includes the persons formally called by the State to testify against
the defendant at trial. The text of these provisions, however, does not indicate the extent
to which a prosecutor may introduce the out-of-court statements of persons who do not
testify in the prosecution’s case at trial.
In the landmark case of Crawford v. Washington, 541 U.S. 36 (2004), the Supreme
Court redefined many of the core principles for evaluating whether a criminal defendant
has the right to require the prosecution to produce the declarants of extrajudicial
statements so that the defendant can confront and cross-examine them. Our analysis
begins with Crawford, the opinion that essentially “‘rewrote confrontation clause
analysis.’” State v. Norton, 443 Md. 517, 524 n.8 (2015) (quoting 6A Lynn McLain,
Maryland Evidence: State and Federal § 800:5 (3d ed. 2013)).
The defendant in that case, Michael Crawford, stabbed a man. Crawford, 541 U.S.
at 38. Crawford’s wife, Sylvia, witnessed the stabbing. Id. At trial, Crawford’s wife did
not testify, “because of the state marital privilege, which generally bars a spouse from
testifying without the other spouse’s consent.” Id. at 40. The trial court nevertheless
allowed the State to introduce a recording of statements from a police interrogation, in
which Sylvia Crawford arguably undermined her husband’s claim of self-defense. Id.The Supreme Court ultimately determined that the use of Ms. Crawford’s statements at
Crawford’s trial, where Crawford had no opportunity to cross-examine her, violated his
rights under the Confrontation Clause. Id. at 68-69.
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In an opinion by Justice Scalia, the Supreme Court looked to the historical
background of the Confrontation Clause in an effort to understand its meaning. Id. at 43.
According to the Court, the Confrontation Clause emerged out of the response to
controversial criminal trial practices in England and in the American colonies that
departed from “[t]he common-law tradition . . . of live testimony in court subject to
adversarial testing[.]” Id. (citing 3 William Blackstone, Commentaries on the Laws of
England 373-74 (1768)). During the sixteenth, seventeenth, and eighteenth centuries,
criminal tribunals sometimes admitted transcripts from pretrial examinations, in which
witnesses had been questioned in private by judicial officers. Crawford, 541 U.S. at 43-
48. “Through a series of statutory and judicial reforms, English law developed a right of
confrontation that limited these abuses.” Id. at 44. Declarations of rights adopted by
Maryland and other states, and eventually the federal Bill of Rights, guaranteed a
confrontation right to secure this common-law safeguard. Id. at 48-49.
From this history, the Court inferred that “the principal evil at which the
Confrontation Clause was directed was the civil-law mode of criminal procedure, and
particularly its use of ex parte examinations as evidence against the accused.” Id. at 50.
The Court then construed the Clause’s text in light of that historical purpose:
The text of the Confrontation Clause reflects this focus. It applies to
“witnesses” against the accused — in other words, those who “bear
testimony.” 2 N. Webster, An American Dictionary of the English
Language (1828). “Testimony,” in turn, is typically “[a] solemn
declaration or affirmation made for the purpose of establishing or proving
some fact.” Ibid. An accuser who makes a formal statement to
government officers bears testimony in a sense that a person who makes a
casual remark to an acquaintance does not. The constitutional text, like the
history underlying the common-law right of confrontation, thus reflects an
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especially acute concern with a specific type of out-of-court statement.
Id. at 51.
The Court concluded that the right of confrontation attaches to hearsay statements
that are “testimonial.” Id. Without selecting any “comprehensive definition of
‘testimonial,’” the Court reasoned that the term “applies at a minimum . . . to police
interrogations,” which are among “the modern practices with closest kinship to the
abuses at which the Confrontation Clause was directed.” Id. at 68. The Court
specifically noted that “[p]olice interrogations bear a striking resemblance to
examinations by justices of the peace in England,” who performed “an essentially
investigative and prosecutorial function” in producing evidence from witnesses who were
not always under oath. Id. at 52-53. Consequently, the Court held that the recorded
statements from the interrogation of Crawford’s wife were testimonial. Id. at 68.
As part of its analysis, Crawford expressly repudiated a prior test that had
premised the admissibility of unconfronted hearsay upon judicial determinations of
reliability. In so doing, the Court overruled Ohio v. Roberts, 448 U.S. 56 (1980), which
had held that it did not violate the Confrontation Clause to admit hearsay statements from
a declarant who was not present for cross-examination, as long as the declarant was
unavailable, and the statement either fell “within a firmly rooted hearsay exception” or
bore “particularized guarantees of trustworthiness.” Crawford, 541 U.S. at 66. Crawford
emphatically rejected the notion that courts can employ general hearsay exceptions or the
“indicia or reliability” of an out-of-court statement to dispense with a defendant’s right to
require the prosecution to produce the witnesses against him or her so that they could be
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subjected to cross-examination. See id. at 51, 61. Reasoning that the Clause permits
“only those exceptions established at the time of the founding,”6 the Court held that
testimonial hearsay from an absent witness is generally admissible against a criminal
defendant only if the declarant is unavailable, and the defendant had a prior opportunity
to cross-examine that witness. Id. at 54.
Taylor had no pre-trial opportunities to cross-examine the sign-language
interpreter, Joe Smith, about his interpretation of what Taylor had communicated to him.
The State neither asserted nor made any showing that Smith was unavailable, and the
court made no finding of the witness’s unavailability. Accordingly, our reasoning here
turns on whether the challenged statements are testimonial hearsay under Crawford and
its progeny.
For over a decade, the Supreme Court has developed and refined its analysis of
what Crawford called “testimonial hearsay.” The Court has consistently declined to offer
any exhaustive definition, but cases that have determined whether a statement is
testimonial fall into two main categories.
6
The Supreme Court has expressly acknowledged only two exceptions to the right
of confrontation that were established at the time the Sixth Amendment was ratified. The
first exception is for “declarations made by a speaker who was both on the brink of death
and aware that he was dying.” Giles v. California, 554 U.S. 353, 358 (2008); see Hailes,
442 Md. at 506-14. A second founding-era doctrine, forfeiture by wrongdoing,
“permitted the introduction of statements of a witness who was ‘detained’ or ‘kept away’
by the ‘means or procurement’ of the defendant.” Giles, 554 U.S. at 359. The Court has
entertained a possible exception for one class of evidence that “though prepared for use at
trial, was traditionally admissible” without confrontation: a clerk’s certificate to
authenticate an official record or copy of an official record. Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 322-23 (2009).
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The first series of cases, flowing directly from Crawford, involves oral statements
given in response to questioning from government actors. See Davis v. Washington, 547
U.S. 813, 826-29 (2006) (phone conversation between domestic violence victim and 911
operator was not testimonial because its primary purpose was to enable police to meet an
ongoing emergency); id. at 829-32 (in a consolidated case Hammon v. Indiana, victim’s
statement describing domestic abuse to police at crime scene shortly after assault was
testimonial because there was no emergency, and the primary purpose was to investigate
a possible crime); Michigan v. Bryant, 562 U.S. 344, 370-78 (2011) (statements from
mortally-wounded shooting victim to officers responding at scene were not testimonial
because the primary purpose was to meet an ongoing emergency and to ascertain whether
the shooter posed a threat to the police and public, and because the questioning lacked
formality); Ohio v. Clark, 135 S. Ct. 2173, 2181-82 (2015) (child-abuse report from
three-year-old to preschool teachers was not testimonial because it was not made for the
primary purpose of creating evidence, but of meeting an ongoing emergency involving
suspected abuse); see also Giles v. California, 554 U.S. 353, 356-58 (2008) (assuming
without deciding that abuse victim’s report to police was testimonial).
The second line of cases concerns written reports, solicited by state actors and
created specifically to serve as evidence in a criminal case. See Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 309-11 (2009) (affidavits from state laboratory technicians
certifying composition and amount of seized drug sample were testimonial); Bullcoming
v. New Mexico, 131 S. Ct. 2705, 2716-17 (2011) (unsworn forensic report certifying
blood-alcohol concentration of seized blood sample was testimonial); Williams v. Illinois,
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132 S. Ct. 2221, 2242-44 (2012) (plurality opinion determining that DNA profile report
from independent laboratory was not testimonial).
The statements of an interpreter hired by police to assist in a station-house
interrogation do not fit neatly into just one of these two categories. The Supreme Court
has neither decided nor commented upon the issue that we face here: whether the
interpreter’s statements about what the defendant said qualify as “testimonial.”
Nevertheless, the Supreme Court’s post-Crawford jurisprudence, when viewed in its
entirety, supplies the tools needed to answer that question.
B. Inquiries Derived from Crawford and Other Interrogation Cases
In Norton, the Court of Appeals’ most recent opinion analyzing testimonial
hearsay, the Court identified a number of inquiries that can be derived from Crawford and
its successors. First of all, “[t]o whom the statement is made is a key component” in
determining whether a statement is testimonial. Norton, 443 Md. at 530; accord Clark,
135 S. Ct. at 2182; Bryant, 562 U.S. at 369. Because the involvement of government
officials performing an investigative function implicates the core concerns of the
Confrontation Clause (Crawford, 541 U.S. at 52-53, 56 n.7; Bryant, 562 U.S. at 358),
statements made to law enforcement officers “principally charged with uncovering and
prosecuting criminal behavior” are significantly more likely to be considered testimonial
than statements made to others. See Clark, 135 S. Ct. at 2182.
A concomitant inquiry looks to the purpose of the statement, specifically “whether,
when viewed objectively, the challenged statement was ‘made for the purpose of
establishing or proving some fact’ in a criminal prosecution or investigation.” Norton,
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443 Md. at 531 (quoting Crawford, 541 U.S. at 51). Typically, statements made in
response to questions from law enforcement “are testimonial when the circumstances
objectively indicate” that there is no ongoing emergency requiring police assistance “and
that the primary purpose of the interrogation is to establish or to prove past events
potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822. This primary
purpose determination “requires a combined inquiry that accounts for both the declarant
and the interrogator” and looks to “the contents of both the questions and the answers.”
Bryant, 562 U.S. at 367-68. Not only “[t]he identity of an interrogator” but also “the
content and tenor of [the] questions can illuminate the primary purpose of the
interrogation.” Id. at 369 (citations and quotation marks omitted).
In this case, “[i]t is entirely clear from the circumstances that the interrogation was
part of an investigation into possibly past criminal conduct[.]” Davis, 547 U.S. at 829;
see also State v. Lucas, 407 Md. 307, 319 (2009). The main interrogator here, Detective
Camp, was a law enforcement officer whose primary job responsibility was to investigate
sexual abuse and similar crimes. The challenged statements were “made in the course of
a criminal investigation initiated by the government[.]” State v. Snowden, 385 Md. 64, 81
(2005) (citing Crawford, 541 U.S. at 50-52). Both the questions and answers from the
interview sought to establish facts related to Taylor’s possibly criminal actions from over
a year earlier. The exchange took place “some time after the events were over,” and it
was designed to elicit “what happened,” in the past tense. Davis, 547 U.S. at 830.
Although we can imagine situations in which an interpreted interview might seek to
resolve some ongoing emergency involving the abuse of minors (e.g., Clark, 135 S. Ct. at
-19-
2181), any such emergency had ended long before the arrest, when the School removed
Taylor from his custodial role. In sum, “[o]bjectively viewed, the primary, if not indeed
the sole, purpose of the interrogation was to investigate a possible crime[.]” Davis, 547
U.S. at 830.7
In Williams v. Illinois, 132 S. Ct. 2221 (2012), a plurality of the Supreme Court
endorsed a more restrictive version of the primary purpose test. Williams involved a
laboratory report that analyzed DNA from a semen sample that had been recovered from
a rape victim. Justice Alito and three other justices concluded that the report was not
testimonial because “[i]t plainly was not prepared for the primary purpose of accusing a
targeted individual,” but rather “to catch a dangerous rapist who was still at large.” Id. at
2243. The Maryland Court of Appeals has held that a statement is testimonial if it has a
basic evidentiary purpose and if it satisfies Justice Alito’s “targeted accusation” test. See
Norton, 443 Md. at 542-47 (analyzing Young v. United States, 6 A.3d 1033 (D.C. 2013)).
Even under this narrowly defined test of the primary purpose, however, the challenged
statements in this case qualify as testimonial -- the police were not seeking to apprehend
a sexual predator who was still at large; they were interviewing the lone suspect, who was
7
The Supreme Court has commented: “In making the primary purpose
determination, standard rules of hearsay, designed to identify some statements as reliable,
will be relevant.” Bryant, 562 U.S. at 358-59. In Bryant, the Court recognized that some
statements that fall into hearsay exceptions, such as excited utterances, are typically not
made for any evidentiary or prosecutorial purpose. See id. at 361. As an illustration here,
if the interpreter suddenly exclaimed, “Taylor’s pointing a gun at me!” during the
interrogation, then that utterance would not be testimonial even though it was made
within a testimonial setting. By contrast, the primary purpose of the challenged
statements in this case was to “creat[e] an out-of-court substitute for trial testimony.” Id.
at 358.
-20-
already under arrest.
Other inquiries for evaluating a statement’s testimonial nature focus less on the
parties involved in the exchange and more on the objective circumstances surrounding
the statement. The Court of Appeals directs us to examine whether the statement was
solicited “under circumstances that ‘would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial.’” Norton, 443 Md. at
531 (quoting Crawford, 541 U.S. at 52). A related “query from Crawford is whether the
statement under scrutiny was made in a formal context.” Norton, 443 Md. at 531. This
evaluation “may turn on the form of the statement as well as other circumstances
involving the creation of the statement, such as if it was offered in the confines of a
police interview room.” Id. at 531-32 (citing Crawford, 541 U.S. at 52-53); e.g., Bryant,
562 U.S. at 362 (distinguishing informal and disorganized questioning in exposed public
area from the “formal station-house interrogation in Crawford”).
Looking to these objective circumstances, an ordinary person in the interpreter’s
position would have anticipated that the “statements to the sexual abuse investigator”
about what the suspect, Taylor, had said “potentially would have been used to ‘prosecute’
[Taylor].” Snowden, 385 Md. at 84; cf. Clark, 135 S. Ct. at 2181-82 (child’s report to
preschool teachers was non-testimonial where the child neither was informed nor
intended nor understood that his statements would be used by police or prosecutors).
Taylor’s interview was characterized by precisely the level of formality as the
questioning of Sylvia Crawford, which “followed a Miranda warning, was tape recorded,
and took place at the station house.” Davis, 547 U.S. at 830 (citing Crawford, 541 U.S.
-21-
at 53 n.4.). When the detective told Smith to inform Taylor that “anything [he] sa[id]”
could be used against him, a reasonable person in the interpreter’s position would expect
that his English interpretations of Taylor’s statements would also be used prosecutorially.
See Davis, 547 U.S. at 837-38 (Thomas, J., concurring).8
In a series of single-author concurring opinions, Justice Thomas has advocated a
test that does not look to the purpose of the out-of-court statement, but to whether the
statement falls into a recognized category of formalized evidentiary materials. See Clark,
135 S. Ct. at 2185-86 (concurring in judgment); Bryant, 562 U.S. at 378-79 (concurring
in judgment); Melendez-Diaz, 557 U.S. at 329-30 (concurring); Giles, 554 U.S. at 377-78(concurring); Davis, 547 U.S. at 823 (concurring in judgment and dissenting in part).
According to Justice Thomas, “the Confrontation Clause regulates only the use of
statements bearing ‘indicia of solemnity.’” Williams, 132 S. Ct. at 2259 (Thomas, J.,
concurring) (quoting Davis, 547 U.S. at 837 (Thomas, J., concurring)). Justice Thomas’s
rationale gained greater importance when he cast the deciding vote in Williams v. Illinois.
See Norton, 443 Md. at 546-47; Derr, 434 Md. at 114-15. Speaking generally, Justice
Thomas has “concluded that the Confrontation Clause reaches . . . statements resulting
from formalized dialogue, such as custodial interrogation.” Williams, 132 S. Ct. at 2260(Thomas, J., concurring) (citations and quotation marks omitted). Although Justice
8
Additional comments from Detective Camp would have eliminated any possible
doubt as to whether the interview responses would be used against Taylor. She stated:
“Let me tell you what my role is. I’m a police detective. I gather information, I present it
to the court, and they decide if you should be charged or not. Once they decide, okay,
there is something that you might be able to be charged with then, that’s why an arrest
warrant is issued. At that point, it goes to the judge to determine if you’re guilty or not.”
-22-
Thomas did not write separately in Crawford, he later identified the Miranda warning as
the most important indicia of solemnity in that case. See Davis, 547 U.S. at 837-38(Thomas, J., concurring) (explaining that a warning that statements may be used in court
“imports a solemnity to the process that is not present in a mere conversation between a
witness and a suspect or a police officer”). Under the circumstances here, the structured
police questioning after a Miranda warning carried as much formality and solemnity as
the interrogation from Crawford.
Indeed, outside of a courtroom setting, it is difficult to imagine any facts that
would have increased the formality of the interpreter’s statements about what Taylor had
said. Perhaps the detective could have asked Smith to “swear or affirm under the
penalties of perjury to interpret accurately, completely, and impartially[.]” Md. Rule 1-
333(d)(3) (oath for court interpreters); see also Fed. R. Evid. 604. The Supreme Court,
however, has clearly established that unsworn statements may be testimonial. Crawford,
541 U.S. at 52 (explaining that “absence of oath [is] not dispositive”); see Davis, 547
U.S. at 826; see also Bullcoming, 131 S. Ct. at 2717 (rejecting as “implausible” and
“untenable” a construction of the Sixth Amendment that would sanction unfettered use of
unsworn evidentiary materials). In any event, even without taking such an oath,
professional sign-language interpreters (as opposed to ordinary citizens) typically have an
ethical if not legal duty to “[r]ender the message faithfully by conveying the content and
spirit of what is being communicated.” See National Association for the Deaf and
Registry of Interpreters for the Deaf, Code of Professional Conduct, available at
-23-
http://www.rid.org/ethics/code-of-professional-conduct/ (last visited Dec. 23, 2015).9
In sum, the relevant inquiries from Crawford lead us to conclude that the
interpreter’s statements about what Taylor had said were testimonial. The interpreter,
responding to a police request, made recorded statements, inside a police interview room,
to detectives investigating Taylor’s past criminal conduct, and for the purpose of
producing evidence that might be used to prosecute Taylor. “Such statements under
official interrogation are an obvious substitute for live testimony, because they do
precisely what a witness does on direct examination; they are inherently testimonial.”
Davis, 547 U.S. at 830 (emphasis in original).
C. Possible Justifications for an Interpreter Exception to Crawford
The context for Smith’s statements was equivalent to the context of the testimonial
statements made in Crawford. The content of the interpreter’s testimony, however, was
markedly different. Even accepting that Smith was a “witness” for Sixth Amendment
purposes, an interpreter is not the same type of witness as Sylvia Crawford was.
Consequently, we need to inquire whether language specialists such as Smith fall into
some special category of witnesses who are exempt from cross-examination.
For instance, in admitting Smith’s statements at Taylor’s trial, the trial judge
9
An additional component of Crawford’s analysis “involves whether there is
historical authority for the admission of the challenged statement, despite its testimonial
nature.” Norton, 443 Md. at 532. The interpreter’s statements here do not fit any of the
exceptions that the Supreme Court has identified. See supra n. 6.
-24-
commented that the interpreter was “not an accuser” in the ordinary sense.10 Smith was
not recalling any events he had observed at the Maryland School for the Deaf, but was
speaking almost simultaneously as he observed Taylor inside the interview room. The
interpreter himself was not under interrogation, but was only responding to an open-
ended request to relate what Taylor was expressing in sign language. As the State
contends, the overall accuracy of Smith’s interpretations could have been tested (perhaps
fairly enough) through other witnesses such as Detective Camp, Taylor himself, or even
sign-language experts called by the defense. The State also contends that, if Taylor
indeed believed that Smith’s live testimony was particularly important, he could have
used his subpoena power to call Smith as a defense witness.
Crawford does not directly address these arguments. Looking solely at Crawford
and other cases involving official interrogations, we have little guidance to determine
whether these distinctions might remove an interpreter from the constitutional category of
the “witnesses against” a defendant. Nevertheless, in Melendez-Diaz v. Massachusetts,
557 U.S. 305 (2009), and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), the
Supreme Court considered and rejected each one of those potential justifications for
reading such an exemption into the Confrontation Clause.
In Melendez-Diaz, the Court “refused to create a ‘forensic evidence’ exception” to
the confrontation requirement. Bullcoming, 131 S. Ct. at 2713 (citing Melendez-Diaz,
10
The word “accuser” appears in neither the Sixth Amendment nor its Maryland
predecessor. The term did appear in the original proposal for constitutional amendments
that James Madison submitted to the First Congress.
-25-
557 U.S. at 317-21). Melendez-Diaz challenged the admission of statements from non-
testifying forensic experts reporting the results of chemical analysis that identified a
seized substance as cocaine of a specific quantity. Melendez-Diaz, 557 U.S. at 307-09.
The analysts made those statements in sworn certificates, created solely for an
evidentiary purpose in response to a police request. Id. at 310-11. In what it called a
“rather straightforward application” (id. at 312) of the Crawford rule, a majority of the
Court concluded that “the analysts’ affidavits were testimonial statements, and the
analysts were ‘witnesses’ for purposes of the Sixth Amendment.” Id. at 311.
Bullcoming, 131 S. Ct. at 2709-11, concerned an unsworn laboratory report that
certified the machine-generated results of a blood-alcohol concentration test and asserted
that the analyst had followed proper protocol. The Court reasoned that its “precedent
cannot sensibly be read in any other way” than to dictate the conclusion that “when the
State elected to introduce [the analyst’s] certification, [the analyst] became a witness
[whom] Bullcoming had the right to confront.” Id. at 2716. The Court also rejected the
argument that the state could introduce the analysts’ statements through a second expert
who was familiar with the general testing procedures, but who had not performed or
observed the test. Id. at 2709, 2714-15. Together, the Court’s opinions in Melendez-Diaz
and Bullcoming systematically rejected a series of justifications for creating an exemption
to the Confrontation Clause for experts who analyze evidence for police.
In the former case, Massachusetts had argued that its chemical analysts were not
“witnesses against” Melendez-Diaz because they were not “‘accusatory’ witnesses, in that
they [did] not directly accuse [him] of wrongdoing[.]” Melendez-Diaz, 557 U.S. at 313.
-26-
As the Supreme Court explained, however, the Sixth Amendment contemplates only two
categories of witnesses in relation to a criminal defendant: the “witnesses against him” in
the Confrontation Clause; and the “witnesses in his favor” in the Compulsory Process
Clause. Id. “The prosecution must produce the former; the defendant may call the latter.”
Id. at 313-14 (emphasis in original). There can be no “third category of witnesses,
helpful to the prosecution, but somehow immune from confrontation.” Id. at 314. Thus,
even though Smith did not personally accuse Taylor of doing anything other than giving
certain responses to questions, the interpreter nonetheless became a “witness against”
Taylor when the State offered the interpreter’s extrajudicial account of Taylor’s
statements against Taylor in his prosecution. See id. at 313-14; Bullcoming, 131 S. Ct. at
2716.
The Melendez-Diaz Court dismissed the notion that expert analysts do not qualify
as “witnesses against” a defendant simply because the persons who analyze evidence
often report “‘near-contemporaneous observations’” rather than recalling “‘events
observed in the past[.]’” Melendez-Diaz, 557 U.S. at 315 (quoting id. at 345 (Kennedy,
J., dissenting)). Finding no justification to import that temporal distinction into the Sixth
Amendment, the Court reasoned that the right of confrontation reaches even those
statements that could be treated as present-sense impressions. See id. at 316 (citing
Davis, 547 U.S. at 820). Consequently, it makes no difference here that, in giving his
account of what Taylor had said, the interpreter was consulting his short-term memory of
Taylor’s near-contemporaneous sign-language communications rather than his long-term
memory.
-27-
In a similar regard, the Supreme Court rejected the suggestion that witnesses are
not “witnesses against” a defendant if “they ‘observe[] neither the crime nor any human
action related to it.’” Melendez-Diaz, 557 U.S. at 316 (quoting id. at 345 (Kennedy, J.,
dissenting)). The Court found “no authority for this particular type of limitation,” noting
that such a “novel exception . . . would exempt all expert witnesses.” Id. at 316.
Accordingly, the interpreter does not escape confrontation simply because he, like the
chemists and technicians who produced the evidence used against Melendez-Diaz and
Bullcoming, did not personally observe any criminal act.
Furthermore, the Court in Melendez-Diaz was unpersuaded by the argument that
the assertions of the expert analysts were non-testimonial because the analysts were not
responding to direct questions from law enforcement. The Court explained that a witness
still “bears testimony” even when that testimony is volunteered or given in response to an
open-ended inquiry. Id. at 316 (citing Davis, 547 U.S. at 822-23 n.1). A comparable
argument fared no better in Bullcoming, when New Mexico attempted to exempt a
laboratory analyst from confrontation by arguing that his report was not “‘adversarial’” or
“‘inquisitorial[.]’” Bullcoming, 131 S. Ct. at 2717. Even a simple police request to
“‘write down what happened’ suffices to trigger the Sixth Amendment’s protection[.]”
Melendez-Diaz, 557 U.S. at 317 (quoting Davis, 547 U.S. at 819-20). Here, Smith’s
extrajudicial account of what Taylor said is no less testimonial because he delivered his
account in response to a general request from police to interpret Taylor’s answers into
English.
In Melendez-Diaz, 557 U.S. at 317, Massachusetts argued that confrontation rights
-28-
are not implicated when a witness’s testimony results from “neutral, scientific testing.”
The State of New Mexico later echoed that argument, asserting that Bullcoming had no
right to cross-examine a laboratory analyst because that analyst had recorded an objective
fact when he transcribed a machine-produced result. Bullcoming, 131 S. Ct. at 2714. In
both instances, the Court reiterated Crawford’s core holding that the substantive
reliability of the admitted evidence is not a valid basis for ignoring the specific
procedural right guaranteed by the Constitution. See id. at 2715 (citing Crawford, 541
U.S. at 62); Melendez-Diaz, 557 U.S. at 317-18 (quoting Crawford, 541 U.S. at 61-62).
Adopting an approach much like that of the unsuccessful states in Melendez-Diaz
and Bullcoming, the State attempts to minimize the role of the interpreter in this case.
According to the State’s brief, the interpreter, Smith, was “merely a relay for Taylor’s
own statements,” “simply conveying, in a different language” Taylor’s testimony, or
“simply relating the statements of the defendant” rather than “providing his own
independent statements.” In other words, the State contends that the interpreter was
“simply” or “merely” interpreting. These repeated assertions are less a legal argument
and more of a rhetorical exercise in characterization. It is not enough for our
constitutional analysis to select a synonym for “interpreting” and then to attach the
adverb “merely” or “simply” to it.
In our view, the State’s contention that Smith served as “merely a relay” is no
more persuasive than the faulty assertion of the Supreme Court of New Mexico that a
forensic lab technician served as a “‘mere scrivener,’” who did nothing more than record
the results of a machine-generated test. See Bullcoming, 131 S. Ct. at 2714 (citation
-29-
omitted); see also id. at 2715 (rejecting premise that analyst’s task “called for no
interpretation or exercise of independent judgment”). The Supreme Court declined to
uphold the reasoning of the New Mexico court, which had taken the view that
“Bullcoming’s true accuser” (id. at 2714 (citations and quotation marks omitted)) was the
machine that produced the test results, and which had reasoned that Bullcoming could not
cross-examine that machine. Id. at 2713 (citations omitted). The State’s argument here,
not coincidentally, follows that same pattern, by contending that the only “witness is the
defendant [Taylor], not the interpreter [Smith],” and that Taylor has “no Sixth
Amendment right to confront himself.”
In dicta, the Supreme Court in Bullcoming went on to explain that even an
officer’s report of an “objective fact” such as “the address above the front door of a house
or the read-out of a radar gun” cannot be admitted against an accused through testimony
of someone other than the officer who personally made the observations. Id. at 2714. By
analogy, Smith would be subject to cross-examination in the State’s case even if we were
to imagine that he were operating some kind of sign-language interpretation machine and
reading the output for the detectives. Those testimonial statements could not be admitted
through a person such as Detective Camp, who by her own admission had no knowledge
of the meaning of Taylor’s answers aside from what she heard from Smith. See id.; see
also Davis, 547 U.S. at 826 (“the protections of the Confrontation Clause” may not
“readily be evaded by having a note-taking policeman recite the . . . hearsay testimony of
the declarant”) (emphasis in original).
In essence, the State asks us to reason that, in converting a person’s statements
-30-
from one language to another, an interpreter does not assert anything at all. To the
contrary, Smith made representations each time he translated statements from one
language to another. See, e.g., State v. Rodriguez-Castillo, 345 Or. 39, 47 (2008)
(rejecting state’s argument that interpreter makes no independent assertions when
interpreter converts statements between languages). For example, one portion of the
interrogation transcript contains this simple exchange:
DET. CAMP: What about when you hug the girls?
[TAYLOR]: Yes. I do, we do hug.
The actual speaker of that answer was not Taylor, a man who literally does not and
cannot enunciate spoken words in the English language. Rather, the speaker was the
interpreter, Smith, attributing the response to Taylor. In the example above, two
declarants made testimonial assertions: Taylor made a declaration in sign language; and
then Smith, in his interpretation of Taylor’s sign-language declaration, declared that
Taylor had said that he (Taylor) had hugged the female students. Taylor is the declarant
of his sign-language responses (recorded on the video), and Smith is the declarant of his
English interpretations of Taylor’s responses (recorded on the audio). See Rodriguez-
Castillo, 345 Or. at 47; State v. Terrazas, 162 Ariz. 357, 359 (Ariz. App. 1989) (quoting
State v. Letterman, 47 Or. App. 1145, 1148 (1980)); accord United States v. Charles, 722
F.3d 1319, 1324 (11th Cir. 2013).11
11
It is true that the interpreter Smith did not explicitly preface each answer by
saying: “I have conveyed a faithful interpretation of your question in sign language to the
subject, and in my opinion here is the most faithful English interpretation of the meaning
of the subject’s response.” For the sake of simplicity and clarity, an interpreter does not
-31-
By treating Smith as nothing more than a neutral mouthpiece through which
Taylor’s messages passed without being affected in any way, the State asks us to endorse
a fallacy or misconception that ignores the reality of language interpretation. Translating
or interpreting another language into English is no “simple” task:
“An interpreter must listen to what is being said, comprehend the message,
abstract the entire message from the words and the word order, store the
idea, search his or her memory for the conceptual and semantic matches,
and reconstruct the message (keeping the same register or level of difficulty
as in the source language). While doing this, the interpreter is speaking and
listening for the next utterance of the language to process, while monitoring
his or her own output.”
State v. Montoya-Franco, 250 Or. App. 665, 672 (2012) (quoting Cathy Rhodes, Court
Certification, 1 Access to Justice Journal 1, 2 (Summer 1999)).
“Some judges and attorneys have a mistaken belief than an interpreter renders . . .
proceedings word for word, but this is impossible because there is not a one-to-one
correspondence between words or concepts in different languages.” National Association
of Judicial Interpreters and Translators, FAQ About Court and Legal Interpreting and
Translating, http://www.najit.org/certification/faq.php#judiciary (last visited Sept. 1,
2015); accord Md. Rules App’x: Explanations of Responses to Voir Dire Questions for
Interpreters, Question 27 (2015) (“Verbatim [or] ‘word-for-word’ [interpretation] . . . is
impossible in interpreting since it would necessitate a disregard for grammar and other
features unique to a language. . . A proper interpretation will retain the mood, tone,
unnecessarily repeat those introductory portions hundreds of times throughout a
conversation. The surplus verbiage is implied by the context of the exercise of
translation.
-32-
nuances, and meaning of the speaker to the extent that the target language has an
appropriate equivalent”).
American Sign Language is no different from foreign languages in this respect.
“American Sign Language (ASL) is a complete, complex language that employs signs
made by moving the hands combined with facial expressions and postures of the body.”
National Institute on Deafness and Other Communication Disorders, American Sign
Language Fact Sheet, at 1 (Feb. 2015), available at http://www.nidcd.nih.gov/
staticresources/health/hearing/MIDCD-American-Sign-Language.pdf (last visited Dec.
23, 2015). “ASL is a language completely separate and distinct from English. It contains
all the fundamental features of language – it has its own rules for pronunciation, word
order, and complex grammar. . . . For example, English speakers ask a question by
raising the pitch of their voice; ASL users ask a question by raising their eyebrows,
widening their eyes, and tilting their bodies forward.” Id. at 2. Specific ways of
communicating ideas in ASL vary as a result of regional variation, factors such as age
and ethnicity, and individual differences in expression. See id. The absence of any direct
equivalence between sign-language expressions and spoken English sentences is the very
reason that the police required the services of the Certified Deaf Interpreter, Charm
Smith, during the interrogation.
Recognizing the high level of education, knowledge, skills, and judgment needed
to produce faithful interpretations between English and sign language, Maryland typically
requires that court interpreters of sign language undergo a rigorous certification process.
See generally Md. Rule 1-333; Md. Rules App’x: Explanations of Responses to Voir Dire
-33-
Questions for Interpreters, Questions 11-12 (2015); Registry of Interpreters for the Deaf,
National Interpreter Certification (NIC), http://www.rid.org/rid-certification-
overview/nic-certification/ (last visited Dec. 23, 2015). The interpreters’ primary role is
“to apply their best skills and judgment to preserve faithfully the meaning of what is
said[.]” See Maryland Administrative Office of the Courts, Maryland Court Interpreter
Handbook, at 10 (July 2015), available at http://www.courts.state.md.us/interpreter/ (last
visited Dec. 23, 2015); accord National Association of the Deaf and Registry of
Interpreters for the Deaf, Code of Professional Conduct, available at
http://www.rid.org/ethics/code-of-professional-conduct/ (last visited Dec. 23, 2015)
(guiding professional interpreters to “exercise judgment, employ critical thinking, apply
the benefits of practical experience, and reflect on past experience in the practice of their
profession”).
The English words that the jurors ultimately heard in this case were not the words
of Taylor, but of Smith, expressing his opinion as to a faithful reproduction of the
meaning of Taylor’s sign-language expressions. As this Court observed in another case in
which a witness testified about the meaning of out-of-court statements spoken by a
defendant in a foreign tongue: “To the extent to which someone translates words [from a
non-English language] into English, the rendering of an opinion is inherent in the
situation.” Malekar v. State, 26 Md. App. 498, 508 (1975).
In Melendez-Diaz, 557 U.S. at 318-21, Massachusetts argued for an exception to
the Confrontation Clause by contending that requiring confrontation for forensic experts
would have little or no utility in a criminal trial. The Supreme Court rejected that
-34-
premise and identified a number of ways in which cross-examination might expose false
or inaccurate testimony regarding scientific testing, such as dishonesty, bias, errors,
incompetence, or deficiencies in the expert’s training, judgment, or methodology. See id.
at 318-21; see also Bullcoming, 131 S. Ct. at 2715 (reasoning that absence of cross-
examination of technician deprived Bullcoming of opportunity to “expose any lapses or
lies” or to show the technician’s “incompetence, evasiveness, or dishonesty”).
No great stretch of imagination is required to think of similar examples of how
cross-examination can address an interpreter’s proficiency, honesty, or methodology.
One common focus of cross-examination of an interpreter or translator is to inquire into
the witness’s language fluency. See, e.g., United States v. Martinez-Gaytan, 213 F.3d
890, 892-93 (5th Cir. 2000) (vacating denial of motion to suppress defendant’s confession
interpreted into English by federal agent so that court could assess the agent’s ability as
an interpreter and give defendant opportunity to attack quality of interpretations); United
States v. Hernandez, 995 F.2d 307, 311-12 & n.9 (1st Cir. 1993) (noting that defendants
had opportunity on cross-examination to test Spanish language proficiency of DEA agent
who translated incriminating statements into English); Hernandez-Garza v. I.N.S., 882
F.2d 945, 947-48 (5th Cir. 1989) (holding that immigration judge denied alien fair
deportation proceeding by denying cross-examination to test language fluency of officers
who transcribed English translation of alien’s Spanish-language statements) (“the attempt
by . . . counsel to test the agents’ fluency in Spanish was appropriate and reasonable, and
may have been the only meaningful way to measure the testimony”).
Just as the task of interpretation is not uniquely immune to human error, so too is it
-35-
not uniquely immune to human suggestion or manipulation. The Supreme Court has
expressed concern that experts “responding to a request from a law enforcement officer
may feel pressure – or have an incentive – to alter the evidence in a manner favorable to
the prosecution.” Melendez-Diaz, 557 U.S. at 318. Those concerns may arise in the
interrogation-room context, where an interpreter is not exercising professional judgment
behind a “veil of ignorance [that] makes it unlikely that [he or she] has a defendant-
related motive to behave dishonestly.” Williams, 132 S. Ct. at 2249 (Breyer, J.,
concurring). After spending hours within the coercive atmosphere of a police
interrogation, hearing a veteran detective make targeted accusations at a suspect, an
interpreter could conceivably become more error-prone or begin to shade the
interpretations against the suspect.
In addition, Taylor’s brief notes that fatigue resulting from the extraordinary
mental demands of interpreting over prolonged periods can affect the accuracy of
interpretations. See, e.g., Maryland Administrative Office of the Courts, Court Interpreter
Coordinator Manual, at 59 (July 2015), available at http://www.courts.state.md.us/
interpreter/pdfs/courtinterpretercoordinatormanual2015.pdf (last visited Dec. 23, 2015)
(advising judges to provide periodic rest breaks for court interpreters because “interpreter
accuracy declines significantly after 30 minutes of continuous interpretation”). Over the
nearly five-hour course of Taylor’s interrogation, the interpreters received only two
breaks: a ten-minute break after about two and a half hours of testimony, and a two-
minute break another hour later. Most of the more incriminating statements attributed to
Taylor occurred during the later portions of the interrogation. Live testimony from the
-36-
interpreter might have suggested that fatigue or inattention undermined the accuracy of
those interpretations.
Even in cases where an interpreter is fully capable and impartial, questioning of
the interpreter might illuminate the precise meaning of a particularly important statement.
For example, in People v. Gutierrez, 137 Cal. App. 3d 542, 544-47 (Ct. App. Cal. 1982),
the court held that, in a Spanish-speaking defendant’s trial for forcible rape, the trial court
infringed the defendant’s right to cross-examine the State’s witnesses by precluding
questions about the actual Spanish words that he had used in his confession. The
translator had interpreted the defendant’s confession to mean that he had physically
forced himself upon the victim, but the court recognized that a “substantially different
connotation could have been drawn by the jury had Gutierrez said he was only trying to
force his affections upon [her].” Id. at 547. Similarly, in Territory v. Kawano, 20 Haw.
469, 472-77 (Sup. Ct. Terr. Haw. 1911), the court held that, in a Japanese-speaking
defendant’s trial for committing perjury in a prior proceeding, the trial court improperly
denied the defendant the right to cross-examine the court interpreter about the precise
Japanese words that the defendant had used. The interpreter had translated the
defendant’s statements to mean that the defendant had witnessed a business transaction,
but the defendant claimed that he “did not testify positively” about the transaction and
that he had prefaced his remarks (in Japanese) with the explanation that he believed his
statements to be true based on what another person had told him. Id. at 474.
In the instant case, a similarly subtle dispute over meaning was crucial: the
interpreter stated that Taylor admitted that he repeatedly had touched specific body parts
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of specific students but that the touching was accidental; Taylor’s defense sought to show
that Taylor only told that interpreter that, if he had touched anyone, it would have been an
accident.12
The State correctly concedes that Taylor had the right to “dispute the accuracy of
the interpretation[s],” but argues that he was not entitled to be confronted with the person
who interpreted his statements. The State first tells us that “Taylor was free to subpoena
Smith and question him about his interpretations.” The Supreme Court, however, has
already rejected the notion that a defendant’s power to subpoena the declarants whom the
State chooses not to call is a permissible substitute for confrontation: “the Confrontation
Clause imposes a burden on the prosecution to present its witnesses, not on the defendant
to bring those adverse witnesses into court.” Melendez-Diaz, 557 U.S. at 324.
The State next tells us that there was no Sixth Amendment violation because
Taylor was free to take the stand himself or to call another language expert to dispute
Smith’s interpretations. The Court already disposed of that line of argument too. See
Bullcoming, 131 S. Ct. at 2715-16 (holding that cross-examination rights are not satisfied
simply because defendant has an opportunity to examine a “substitute” or “surrogate”
witness because “the Clause does not tolerate dispensing with confrontation simply
because the court believes that questioning one witness about another’s testimonial
statements provides a fair enough opportunity for cross-examination”).
12
In grammatical terms, the interpreter expressed Taylor’s statements in the
indicative mood to assert an objective fact about what Taylor had done. Taylor, by
contrast, contends that he actually employed the subjunctive mood to make a statement
about what hypothetically might have occurred.
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In sum, the Supreme Court, in a different context, has already considered and
rejected nearly all of the possible justifications for creating a confrontation exception for
interpreters. Indeed, this case would fall squarely under Melendez-Diaz and Bullcoming
if, instead of relying on a recording of Smith’s statements, the State had submitted an
affidavit from a language expert, attesting to that expert’s English-language translation of
the conversation. The interpretation of a suspect’s statements during a custodial
interrogation is no less testimonial than an expert affidavit.
D. Conflicting Doctrines Adopted by United States Courts of Appeals
Our analysis of controlling precedent from the Supreme Court and from the Court
of Appeals of Maryland guides us to conclude that the State introduced testimonial
hearsay when it offered a recording of Smith’s interpretations as evidence against Taylor.
Neither of those Courts, however, has applied the Crawford holding to the factual
circumstances that we face here.
A number of cases from United States Courts of Appeals have addressed the issue
of whether a defendant has the right to confront an interpreter used during a government
interrogation. As he did at his trial, Taylor now urges us to follow the post-Crawford
reasoning of the Eleventh Circuit in United States v. Charles, 722 F.3d 1319 (11th Cir.
2013). For its part, the State argues that we should reject Charles and instead adopt the
approach taken by the Ninth Circuit in the pre-Crawford case of United States v.
Nazemian, 948 F.2d 522, 525-28 (9th Cir. 1991), cert. denied, 506 U.S. 835 (1992),
which Ninth Circuit panels have deemed themselves obligated to follow pending a
decision from the entire court en banc. See United States v. Orm Hieng, 679 F.3d 1131-39-
(9th Cir.), cert. denied, 133 S. Ct. 775 (2012).
In Charles, the Eleventh Circuit became the first appellate court to fully analyze
the admissibility of out-of-court interpretations against a defendant according to the
principles established by Crawford, Melendez-Diaz, and Bullcoming. The defendant in
that case, Manoucheka Charles, was a Haitian national who spoke Creole and did not
speak or understand English. Charles, 722 F.3d at 1320. Customs and Border Patrol
officers detained Charles for questioning upon her arrival at Miami International Airport.
Id. at 1321. An officer who did not speak Creole interrogated Charles with the assistance
of an interpreter. Id. At Charles’s trial for knowingly using a fraudulently altered travel
document, the customs officer testified about certain incriminating statements that the
interpreter said that Charles had made. Id. Because the government did not call the
interpreter, Charles had no “opportunity to cross-examine the interpreter regarding what
any of Charles’s purported statements meant or what specific words or phrases Charles
actually used.” Id. at 1321.
In an opinion by Judge Rosemary Barkett, the Eleventh Circuit panel held that the
Confrontation Clause guaranteed Charles “the right to confront the Creole language
interpreter about the statements to which the [customs] officer testified to in court.” Id. at
1325. The Court explained that the interpreter’s English language statements about what
Charles said in Creole were testimonial hearsay because the interpreter made those
statements in the context of an interrogation and because the government offered the
interpreter’s statements to prove the truth of those statements. Id. at 1323-24. The Court
reasoned that, for Confrontation Clause purposes, there were two sets of out-of-court,
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testimonial statements made by two different declarants: “Charles [was] the declarant of
her out-of-court Creole language statements and the language interpreter [was] the
declarant of [the interpreter’s] out-of-court English language statements.” Id. at 1324.
The government had contended that the Court should view the interpreter’s
English statements as Charles’s statements by extending the reasoning of older cases
involving the admissibility of interpreted statements over hearsay objections. Id. (citing
United States v. Alvarez, 755 F.2d 830, 860 (11th Cir. 1986), and United States v. Da
Silva, 725 F.2d 828 (2d Cir. 1983)). Those cases, which not only predate Crawford, but
do not address the issue of confrontation, held that an officer’s testimony as to an
interpreter’s out-of-court interpretations of what a defendant said may be admissible
under federal hearsay rules. See Alvarez, 755 F.2d at 589-60 (citing Da Silva, 725 F.2d at
832). The Eleventh Circuit declined the government’s invitation to ignore the interpreter
and to treat the interpreter’s English statements as if Charles had made them directly to
the officer. Id. at 1325.
Under the rationale of Da Silva and other pre-Crawford cases that adopted its
reasoning, a defendant may adopt an interpreter as an agent or authorize an interpreter to
speak on his or her behalf. See Da Silva, 725 F.2d at 831-32. The Federal Rules of
Evidence characterize those statements as non-hearsay when they are offered against the
defendant. See Fed. R. Evid. 801(d)(2)(C), (d)(2)(D) (“A statement is not hearsay if . . .
(2) [t]he statement is offered against a party and is . . . (C) a statement by a person
authorized by him to make a statement concerning the subject, or (D) a statement by his
agent or servant concerning a matter within the scope of his agency or employment, made
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during the existence of the relationship”).13 Notably, in treating an interpreter as the
defendant’s agent or as a person authorized to speak for the defendant, cases like Da Silva
do not characterize “the interpreter’s statements as the same as the defendant’s own
statements.” Charles, 722 F.3d at 1326. In other words, even where an interpreter’s
statements may be “attributable” to a defendant for hearsay purposes (Da Silva, 725 F.2d
at 832), an interpreter is still the declarant of his or her own statements about what the
defendant has said. See Charles, 722 F.3d at 1326-27. If older cases like Da Silva had
viewed the interpreter’s statements as the defendant’s own statements, then they would
have relied on Fed. R. Evid. 801(d)(2)(A), the separate hearsay exception for a party’s
own statements. See Charles, 722 F.3d at 1326-27.
In Da Silva, 725 F.2d at 831-32, the Second Circuit established a reliability-based
test to evaluate the circumstances under which an interpreter may be treated as the
defendant’s authorized agent under federal evidentiary rules. Under this test, an
interpreter is presumptively viewed as the defendant’s agent when the defendant
consciously relies upon the interpreter to communicate. Id. The defendant can negate
that inference of agency by affirmatively showing some bias or incompetence on the
interpreter’s part. Id. at 832. “Where, however, there is no motive to mislead and no
reason to believe the translation is inaccurate, the agency relationship may properly be
found to exist,” and “the translator is no more than a ‘language conduit[.]’” Id. at 832(quoting United States v. Ushakow, 474 F.2d 1244, 1245 (9th Cir. 1973) (per curiam)).
13
The corresponding Maryland rule classifies those types of statements as hearsay,
but admits them under an exception. Md. Rule 5-803(a)(1), (3), and (4).
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In Charles, the Eleventh Circuit reasoned that in the post-Crawford era this so-
called “language-conduit” doctrine is both inapplicable and inappropriate for analyzing
whether the interpreter’s statement is testimonial under the Confrontation Clause. The
Court explained: “Da Silva’s view of an interpreter as a ‘language conduit[]’ . . . was
premised on the court’s assessment of the interpreter’s reliability and trustworthiness,
principles supporting the admissibility of the interpreter’s statements under [the Federal
Rules of Evidence], but having no bearing on the Confrontation Clause.” Charles, 722
F.3d at 1327 (citations omitted).
The Charles court emphasized that in Crawford the Supreme Court rejected the
reliability of a statement as the criterion for assessing confrontation violations, and in
Melendez-Diaz the Court “emphatically reiterated its rejection of a reliability standard”
when it declined to create a forensic evidence exception. Charles, 722 F.3d at 1327-28
(citations omitted). “If, as we know from Melendez-Diaz, even results of ‘neutral,
scientific testing[]’ do not exempt the witness who performed the test from cross-
examination, certainly the Confrontation Clause requires an interpreter of the concepts
and nuances of language to be available for cross-examination at trial.” Id. at 1329.
Moreover, just as the Supreme Court refused to permit a surrogate third-party
expert to substitute for the certifying analyst who performed a test in Bullcoming, “so
too,” the Charles court reasoned, “must a language interpreter and not a substitute third
party be subject to cross-examination.” Id. at 1331. As the Charles court pointed out, a
law enforcement officer who has no understanding of the defendant’s language aside
from what the officer hears from the interpreter is obviously “a much less suitable
-43-
substitute” than the surrogate expert who testified about another expert’s conclusions in
the case against Bullcoming. Id.14
In our view, the Eleventh Circuit’s reasoning in Charles is fully consistent with the
interpretation of the Sixth Amendment set forth by the Supreme Court in Crawford and in
the Court’s cases applying Crawford. Under the Supreme Court’s pre-Crawford approach
to the Confrontation Clause, it might have been reasonable to hold that a court could
dispense with confrontation for an interpreter’s testimonial statements because the
statements fit within a recognized hearsay exception and are comparatively more reliable
than statements from other witnesses. After Crawford, Melendez-Diaz, and Bullcoming,
however, that approach is no longer viable.
In attempting to uphold Taylor’s conviction, the State relies on a line of cases that
derive from the now-defunct, pre-Crawford paradigm, under which it would not violate
the Confrontation Clause to admit the hearsay statements of a declarant who failed to
testify at trial, provided that the statements fell within some well-recognized exception or
had other indicia of “reliability.” Thirteen years before Crawford, in United States v.
Nazemian, 948 F.2d 522, 525-28 (9th Cir. 1991), cert. denied, 506 U.S. 835 (1992), the
14
Because Charles had not objected to the admission of the officer’s testimony, the
Eleventh Circuit reviewed her challenge for plain error. Charles, 722 F.3d at 1322. The
Court ultimately held that the admission of the officer’s testimony regarding the English
interpretations ran afoul of the Sixth Amendment, but that any error was not plain
because there had been no binding precedent clearly articulating that a language
interpreter was the declarant of the interpreted statements. Id. at 1331. One member of
the panel concurred on the narrow ground that there was no plain error, but opined that it
was “unnecessary to decide a novel and difficult question of constitutional law in an area
where the Supreme Court’s jurisprudence is still evolving.” Id. at 1332 (Marcus, J.,
concurring).
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Ninth Circuit held that a government agent could testify regarding statements made by an
interpreter of the defendant without implicating the defendant’s confrontation rights. The
Ninth Circuit purported to resolve the constitutional issue by considering “as a threshold
matter whether the interpreter or the defendant should be viewed as the declarant” of the
interpreted statements. Id. at 525.
According to the Ninth Circuit, if an interpreter’s statements “properly are viewed
as” the defendant’s own statements, “then there would be no confrontation clause issue
since [the defendant] cannot claim that she was denied the opportunity to confront
herself.” Id. at 525-26. Borrowing from the agency and “language-conduit” concepts
used in hearsay cases such as the Second Circuit’s Da Silva opinion, the Ninth Circuit
opined that the correct approach to the confrontation issue was to “consider on a case-by-
case basis whether the translated statements fairly should be considered the statements of
the speaker.” Id. at 527. The Court then identified some of the relevant factors for
“determining whether the interpreter’s statements should be attributed to the defendant
under either the agency or conduit theory,” including “which party supplied the
interpreter, whether the interpreter had any motive to mislead or distort, the interpreter’s
qualifications and language skill, and whether actions taken subsequent to the
conversation were consistent with the statements translated.” Id.
Many years later, after the Supreme Court transformed its Confrontation Clause
approach in Crawford and decoupled the Confrontation Clause analysis from the question
of whether a hearsay statement fell within an evidentiary exception to the general rule
against hearsay, the Ninth Circuit considered a challenge from a criminal defendant who
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argued that Crawford had overruled Nazemian: Orm Hieng, 679 F.3d at 1137-41. In that
case, the Ninth Circuit declined to reconsider Nazemian in light of Crawford and its
progeny. The majority explained: “As a three-judge panel, we are bound by circuit
precedent unless the United States Supreme Court or an en banc court of our circuit has
undercut the theory or reasoning underlying the prior circuit court precedent in such a
way that the cases are clearly irreconcilable.” Orm Hieng, 679 F.3d at 1139 (citation and
quotation marks omitted).
In a sentence marked by studied understatement, the Orm Hieng majority
conceded that there was “some tension” between Nazemian and the Supreme Court’s
approach to the Confrontation Clause since Crawford. Id. at 1140. Nevertheless, the
panel reasoned that Crawford, Melendez-Diaz, and Bullcoming were not “in direct
conflict” with the circuit’s use of the language conduit approach because those cases did
not expressly address whether “the Sixth Amendment requires the court to attribute the
statement to the interpreter.” Id. The Court then announced that Nazemian would remain
binding within Ninth Circuit unless the Supreme Court or an en banc panel of that circuit
overrules that holding. Id. at 1141.15
15
In a subsequent reported case, another three-judge panel reiterated the narrow
holding that Nazemian survives within that circuit. United States v. Aifang Ye, 792 F.3d
1164, 1168-69 (9th Cir. 2015). In addition to citing that case, the State incorrectly asserts
that the Ninth Circuit applied Nazemian’s language-conduit theory to the Confrontation
Clause challenge in United States v. Romo-Chavez, 681 F.3d 955 (9th Cir. 2012). To the
contrary, the court in that case applied the language-conduit analysis solely to a hearsay
question (see id. at 959-61) and then found no Sixth Amendment violation because the
translator appeared at trial for cross-examination. Id. at 961. The State seeks further
support from United States v. Shibin, 722 F.3d 233 (4th Cir. 2013), cert. denied, 134 S.
Ct. 1935 (2014), which invoked the “language-conduit” concept in passing, but went on
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Concurring in Orm Hieng, Judge Marsha Berzon agreed with the majority’s
narrow holding that Nazemian was not so “clearly irreconcilable” with Crawford “as to
permit a three-judge panel to overrule” it.” Orm Hieng, 679 F.3d at 1145 (Berzon, J.,
concurring). The concurrence nevertheless recommended that Ninth Circuit, en banc,
should reconsider the vitality of its Confrontation Clause precedent. Id. at 1145, 1149(Berzon, J., concurring). Judge Berzon commented that Nazemian’s holding “seems in
great tension with the holdings of” Melendez-Diaz and Bullcoming. Id. at 1149 (Berzon,
J., concurring); see also United States v. Romo-Chavez, 681 F.3d 955, 962 n.1 (9th Cir.
2012) (Berzon, J., concurring). She added: “Translation from one language to another is
much less of a science than conducting laboratory tests, and so much more subject to
error and dispute.” Orm Hieng, 679 F.3d at 1149 (Berzon, J., concurring).
Although the State urges us to reach the same result as Orm Hieng and to treat the
interpreter Smith as a mere conduit for Taylor’s statements, it would be a mistake to treat
Orm Hieng as an endorsement of Nazemian’s constitutional analysis. The Orm Hieng
opinion is not based upon the Supreme Court’s Sixth Amendment jurisprudence but upon
an intra-circuit principle of stare decisis. By its own terms, the opinion says nothing
about the viability of the language-conduit approach to Confrontation Clause cases
anywhere outside the Ninth Circuit. See id. at 1141 (“Without a further pronouncement .
to reject a Confrontation Clause challenge on the ground that the statement in question
had not been offered for its truth. See id. at 248-49. Finally, the State cites an unreported
opinion from another federal circuit court. “‘However, it is the policy of this Court in its
opinions not to cite for persuasive value any unreported federal or state court opinion.’”
Margolis v. Sandy Spring Bank, 221 Md. App. 703, 718 n.10 (2015) (quoting Kendall v.
Howard Cnty., 204 Md. App. 440, 445 n. 1, (2012), aff’d, 431 Md. 590 (2013)).
-47-
. . Nazemian remains binding in this circuit”) (emphasis added).
Unlike a three-judge panel from the Ninth Circuit, this Court is not required to
uphold prior Ninth Circuit precedent that is in significant tension with Supreme Court
jurisprudence. Our task is not to determine whether Nazemian is “clearly irreconcilable”
with Crawford, but to decide whether Nazemian is actually correct under Crawford. We
are unconvinced that it is.
One major indication that Nazemian retains little if any authoritative weight is that
the case was decided under the pre-Crawford paradigm. The Supreme Court has
reiterated that Crawford “adopted a fundamentally new interpretation of the confrontation
right” (Williams, 132 S. Ct. at 2232 (plurality opinion of Alito, J.)) and “announced a new
rule” that was not dictated by prior precedent. Whorton v. Bockting, 549 U.S. 406, 416
(2007); see Danforth v. Minnesota, 552 U.S. 264, 270 (2008). In addressing Nazemian’s
confrontation challenge, the Ninth Circuit initially invoked the holding that hearsay
statements from an unavailable declarant may be admitted against a defendant upon a
showing that the statements are trustworthy. Nazemian, 948 F.2d at 525 (citing Ohio v.
Roberts, 448 U.S. 56 (1980)). Yet, in Crawford, 541 U.S. at 60-68, the Court expressly
rejected that holding. Even though the Ninth Circuit’s reasoning avoided direct reliance
upon Ohio v. Roberts by deeming the interpreter’s statements to be those of the defendant
(see Nazemian, 948 F.2d at 525-26 & n.5), it is apparent that Nazemian was founded upon
“a pre-Crawford understanding of the unity between hearsay concepts and Confrontation
Clause analysis.” Orm Hieng, 679 F.3d at 1149 (Berzon, J., concurring). Indeed,
Nazemian’s confrontation analysis in no way resembles the type of analysis currently
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used by the Supreme Court.16
The Nazemian court’s analysis rests on four pillars, none of which withstands
scrutiny under the Supreme Court’s current jurisprudence.
First, Nazemian uses rhetorical sleight of hand to distract attention from the fact
that an interpreter makes assertions about the English meaning of what the defendant has
said in his or her own language. By referring to an interpreter as “a mere language
conduit” (Nazemian, 948 F.2d at 528), Nazemian disregards the difficult realities of real-
time language interpretation, including the reality that the interpreter must understand
what the defendant meant and remember what the defendant said while simultaneously
exercising judgment and discretion to convert one set of symbols to another without
altering what the defendant intended to convey. While it may have been rhetorically
useful in the pre-Crawford era to proceed as though the interpreter channels the
defendant’s intended meaning like a medium at a séance, the language-conduit approach
reveals nothing about the substantive legal questions of whether a defendant has the right
to confront an interpreter about bias, proficiency, and errors or inaccuracies in the
translation. See Bullcoming, 131 S. Ct. at 2714 (rejecting notion that lab technician was
“mere scrivener”).
16
Even before Crawford, a California appellate court concluded that a trial court
had violated a defendant’s constitutional rights (but had committed only harmless error
under the circumstances) by admitting an English-language translation of recorded
Spanish-language conversations without testimony from the translator. People v. Torres,
164 Cal. App. 3d 266, 269-70 (1985). The court reasoned: “The failure to call the
original translator to the witness stand denied the defendant a meaningful opportunity to
cross-examine the individual who translated the material as to his qualifications and the
accuracy of the translation.” Id. at 269.
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Second, the language-conduit approach creates a legal fiction as to the identity of
the speaker. Nazemian shifts the inquiry from the person who actually made the relevant
out-of-court statement (the interpreter) to questions of whether the interpreter’s
statements “properly are viewed as” the defendant’s own (Nazemian, 948 F.2d at 526),
whether the interpreter’s statements “fairly should be considered the statements of the
speaker” (id. at 527), or whether the interpretation is “properly attributable to the
defendant.” Id. The word choice is revealing: even the courts adopting this approach do
not actually say that the defendant “made” the interpreter’s statements. Rather, by
judicial fiat, the language-conduit approach collapses the defendant and the interpreter
into a single witness for constitutional purposes. This technique is certainly at odds with
Bullcoming, 131 S. Ct. at 2713-16, which insisted upon live testimony from the person
who actually made the testimonial assertions about forensic test results, and not from a
surrogate. In any event, even if it were “proper” or “fair” to attribute interpreted
statements to the defendant, “‘it does not follow that the rights [set forth in the Sixth
Amendment] can be disregarded so long as the trial is, on the whole, fair.’” Id. at 2716
(quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 145 (2006)); accord Giles, 554
U.S. at 375 (“the guarantee of confrontation is no guarantee at all if it is subject to
whatever exceptions courts from time to time consider ‘fair’”) (plurality opinion by
Scalia, J.). 17
17
Comparing an interrogation-room interpreter to a courtroom interpreter confirms
that an interpreter is a separate witness, distinguished from the person whose testimony
he interprets. The interpreter must be independently competent to testify, takes a special
oath to interpret testimony accurately (e.g., Fed. R. Evid. 604; Md. Rule 1-333(c)(3)), and
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Third, Nazemian’s constitutional analysis depends upon an analogy to evidentiary
rules regarding hearsay. In accordance with the principles of Ohio v. Roberts, which
dictated the relevant analysis at the time when Nazemian was decided, the opinion relied
almost exclusively upon cases analyzing hearsay questions under the Federal Rules of
Evidence, not upon cases construing the Confrontation Clause. See Nazemian, 948 F.2d
at 526-27 & n.5 (citing cases including Da Silva, 725 F.2d at 831). As previously stated,
however, the Supreme Court has since renounced the view of Ohio v. Roberts, that the
admission of hearsay does not violate the Confrontation Clause, as long as the hearsay is
admissible under a well-recognized exception or is otherwise “reliable.” See Crawford,
541 U.S. at 51 (“Leaving the regulation of out-of-court statements to the law of evidence
would render the Confrontation Clause powerless to prevent even the most flagrant
inquisitorial practices”); see also Williams, 132 S. Ct. at 2256 (“concepts central to the
application of the Confrontation Clause are ultimately matters of federal constitutional
law that are not dictated by state or federal evidentiary rules”) (Thomas, J., concurring);
id. at 2272 (“we do not typically allow state law to define federal constitutional
requirements”) (four-member dissenting opinion by Kagan, J.). A possible “language-
conduit” exception to twentieth-century federal hearsay rules is by no means a
constitutional confrontation exception that was “established at the time of the founding.”
is subject to cross-examination and impeachment regarding the interpretations. See, e.g.,
United States v. Rayas, 20 C.M.R. 195, 198 (Ct. Military App. 1955); People v. Lem Do,
132 Cal. 199, 201 (Sup. Ct. Cal. 1901); 81 Am. Jur. 2d Witnesses § 738 (Aug. 2015); see
also 6 Lynn McLain, Maryland Evidence: State and Federal § 604:1 (2d ed. 2001).
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Crawford, 541 U.S. at 54. “The text of the Sixth Amendment,” after all, “does not
suggest any open-ended exceptions to the confrontation requirement to be developed by
the courts.” Id.Fourth, Nazemian premises the admissibility of the absent interpreter’s statements
upon the apparent reliability of the interpretations. This fourth pillar is the weakest of all.
As Taylor correctly points out, each one of the Nazemian factors (who supplied the
interpreter; the interpreter’s possible motives to mislead or distort; the qualifications of
interpreter; and consistency of the interpreted conversation and parties’ subsequent
actions) “is simply a different way of inquiring into the interpreter’s reliability.” Courts
that have adopted the Nazemian factors openly treat the reliability of the interpretations
as the ultimate standard for assessing whether an interpreter should be viewed as a
conduit. E.g. Martinez-Gaytan, 213 F.3d at 892 (distinguishing Nazemian because
accuracy of interpreted statements appeared “less reliable” than statements in other
cases); United States v. Garcia, 16 F.3d 341, 344 (9th Cir. 1994) (reasoning that facts
confirming “reliability” of officer’s translations demonstrated that officer was acting as
conduit); People v. Gutierrez, 916 P.2d 598, 601 (Col. Ct. App. 1995) (analyzing
“reliability of the interpretation” to determine whether interpreter served as conduit).
Indeed, Nazemian’s four-factor reliability test is akin to the unpredictable and
subjective multi-factor “indicia of reliability” tests that the Washington courts had used to
assess Sylvia Crawford’s testimonial statements. See Crawford, 541 U.S. at 41, 63-64.
“By replacing categorical constitutional guarantees with open-ended balancing tests,
[courts] do violence to their design.” Id. at 67-68.
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In sum, the Ninth Circuit’s language-conduit doctrine does exactly what Crawford
forbids: it leaves “the Sixth Amendment’s protection to the vagaries of the rules of
evidence” and to “amorphous notions of ‘reliability.’” Crawford, 541 U.S. at 61.
Nazemian guides judges to make a threshold determination of the interpreter’s honesty,
proficiency, and methodology without testimony from the one witness whose testimony
could best prove the accuracy of the interpretations – the interpreter himself or herself.
Like the repudiated rule of Ohio v. Roberts, the Nazemian doctrine “allows a jury to hear
evidence, untested by the adversary process, based on a mere judicial determination of
reliability.” Crawford, 541 U.S. at 62. The Supreme Court in Melendez-Diaz found it
necessary to sweep away a body of late twentieth-century case law regarding forensic
analysts, including cases that did not rely directly on Ohio v. Roberts, because those cases
relied on the “erroneous” and “since-rejected theory that unconfronted testimony was
admissible as long as it bore indicia of reliability.” See Melendez-Diaz, 557 U.S. at 312.
For similar reasons, we conclude that Nazemian’s confrontation holding should not be
followed in Maryland.18
18
Both before and after Crawford, courts have consulted the Nazemian balancing
test more often in the context of hearsay issues than for constitutional issues. Still, the
State notes that even after Crawford a few courts have continued to apply the language-
conduit theory in Confrontation Clause cases. In People v. Morel, 8 Misc. 3d 67, 71-72
(N.Y. App. Term 2005), the court held that a defendant had not preserved a claim of error
based on Crawford, but went on to opine that a translator’s accuracy was “a purely state
law ‘reliability’ issue” that need not be tested through cross-examination of the
interpreter in addition to other participants in the conversation. In Hernandez v. State,
291 Ga. App. 562, 568 & n.16 (2008), the court followed Morel in reasoning that a
defendant’s right to inquire into an interpreter’s honesty and competency did not include
a right of cross-examination. Even if the scant reasoning of these opinions were
convincing, they have little value because they were decided before Melendez-Diaz and
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Although we cannot predict with certainty how the Supreme Court might rule on
the question presented here, we can safely conclude that no court could adopt Nazemian’s
constitutional test without abandoning or substantially undercutting Crawford, Melendez-
Diaz, and Bullcoming. In our view, the Eleventh Circuit’s analysis from 2013, and not
the Ninth Circuit’s reasoning from the pre-Crawford era, illustrates the correct
application of current law. 19
We understand that a confrontation requirement for interpreters will impose
greater burdens than a procedure that requires the trial judge only to make a threshold
determination of the interpreter’s probable reliability. In Melendez-Diaz, the Supreme
Bullcoming brought further clarity to these issues. The State also cites People v. Jackson,
292 Mich. App. 583, 595-97 (2011), which adopted the language-conduit theory for a
confrontation issue after Melendez-Diaz. In that case, a nurse reported whether a patient
squeezed the nurse’s hand in response to an officer’s questions – a squeeze meant “yes,”
and no squeeze meant “no.” The court held that the defendant’s confrontation rights
were satisfied because the nurse served as a conduit, and the defendant “had a full
opportunity to cross-examine” the officer who asked questions to the patient. Id. at 597.
Even if the Michigan court’s reasoning could survive the Supreme Court’s subsequent
decision in Bullcoming, the case is factually distinguishable from this one: interpreting a
deaf suspect’s sign-language responses in a five-hour custodial interrogation is a bit
different from reporting whether a person has or has not squeezed your hand.
19
Furthermore, even if we adopted the Ninth Circuit’s four-factor test for
assessing the admissibility of interpreted statements, the trial court made no findings as to
any of the factors. Instead, the judge apparently found it dispositive that the interpreter
Smith was not an accusatory witness. In addition, the judge sustained an objection to a
question calculated to establish that the interpreters might be biased because the police
had paid them. It would be inappropriate for this Court to make its own post hoc findings
as to Smith’s reliability as an interpreter. Assuming that Nazemian’s reliability-based
analysis were a correct interpretation of the Sixth Amendment in the post-Crawford era,
which it is not, the judgments would still need to be reversed so that a trial court could
determine whether the interpreted statements are reliable enough to be admissible under
Nazemian.
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Court addressed similar concerns regarding the cross-examination requirement for
forensic analysts. As a legal matter, the Court reasoned that courts have no authority to
forgo specific procedural rights guaranteed by the Constitution simply to relieve the
government and the trial courts of a possible inconvenience. Melendez-Diaz, 557 U.S. at
325. As a factual matter, the Court also expressed doubt that the “the criminal justice
system” would “gr[i]nd to a halt” by insisting that certain analysts appear at trial. Id. at
326.20 Even Nazemian recognized that the prosecution can ensure the availability of a
live witness to interpret statements from a police interview: “Where translation is needed
in the course of an open investigation or interrogation following arrest, there is no reason
why the interview cannot be recorded and/or the translation cannot be conducted by a
certified translator who can be available to testify at trial.” Nazemian, 942 F.2d at 527
n.7.
In fact, in this particular case, the State issued subpoenas to require that the two
sign-language interpreters, Charm and Joe Smith, would be available to testify both at a
suppression hearing and at trial. In addition, because the police had recorded the
interrogation, another interpreter might have provided his or her own translation if Joe
Smith were unavailable. The record does not disclose why the State introduced the
interpreter’s statements through the detective instead of calling the interpreter himself and
subjecting him to cross-examination during the State’s case.
20
The Court also noted that states were free to adopt procedural rules requiring
defendants to assert some Confrontation Clause objections in advance of trial. See
Melendez-Diaz, 557 U.S. at 326-27.
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In summary, even the “‘obviou[s] reliab[ility]’ of a testimonial statement does not
dispense with the Confrontation Clause.” Bullcoming, 131 S. Ct. at 2715 (quoting
Crawford, 541 U.S. at 62). The constitutional right to confrontation “is a procedural
rather than a substantive guarantee,” commanding “not that evidence be reliable, but that
reliability be assessed in a particular manner: by testing in the crucible of cross-
examination.” Crawford, 541 U.S. at 62. Because the court’s rulings deprived Taylor of
the opportunity to challenge the reliability of the State’s evidence in the manner in which
the Constitution prescribes, the judgments shall be reversed. On remand, the State may
not introduce Smith’s statements against Taylor (whether through audio or through the
memory of the detectives who heard Smith’s statements) unless Taylor has an opportunity
to cross-examine Smith in the State’s case against him.21
II.
Because this case must be remanded, we address the remaining issues to the extent
necessary to provide guidance at a second trial. See, e.g., Perez v. State, 168 Md. App.
248, 286 (2006); Odum v. State, 156 Md. App. 184, 210 (2004).
A. Denial of Requests to Reschedule Pre-Trial Motions Hearing
We are unpersuaded by Taylor’s contention that the trial court abused its discretion
when it denied a defense request to postpone a pre-trial motions hearing (after which it
proceeded to deny his motions).
21
Taylor has not argued that he has the right to cross-examine Charm Smith, the
Certified Deaf Interpreter who aided Joe Smith in his interpretations. From the video, it
appears that Mr. Smith was watching Taylor directly and that Charm Smith aided him in
forming his final opinion.
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At the scheduled motions hearing on August 22, 2013, a new attorney entered an
appearance for Taylor. She represented that Taylor’s attorney of record could not attend
the hearing because he was selecting a jury in another trial that he had expected to end
the previous day. She informed the court that she had no knowledge of Taylor’s case, and
she was unprepared to argue the substance of any motion.
The State opposed the postponement, emphasizing that a new hearing date would
entail considerable expense and inconvenience to the prosecutors, witnesses, and five
court interpreters who had appeared for the full-day motions hearing. The court declined
to postpone the hearing, commenting that Taylor’s counsel of record had selected the
hearing date when he had asked for the earlier postponement, that he should have
anticipated the scheduling conflict earlier, and that rescheduling the hearing would be
unfair to other parties. At that point, Taylor’s new attorney responded that she had “no
choice, but to withdraw” Taylor’s pre-trial motions.
In our view, the circuit court acted well within the bounds its discretion when it
refused this postponement request. See Abeokuto v. State, 391 Md. 289, 328-30 (2006);
Grandison v. State, 341 Md. 175, 234 (1995). Contrary to Taylor’s contentions, it is not
unreasonable for a court to factor in the “expense and inconvenience that would be
involved” when considering whether to require all parties to return for another hearing.
See Lett v. State, 51 Md. App. 668, 671-72 (1982). Although trial judges have discretion
to treat an attorney’s unanticipated unavailability as cause for a postponement, the court
was not required to grant a postponement under the circumstances presented here. See
Touzeau v. Deffinbaugh, 394 Md. 654, 672 (2006) (explaining that appellate court will
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not “overrule the trial judge’s denial of a motion for continuance where the moving party
has failed to demonstrate due diligence to mitigate the effects of what was alleged to be a
surprise”) (citing Hughes v. Averza, 223 Md. 12 (1960)).
Taylor protests that the trial court “never appeared to factor in the prejudicial
impact” of denying the continuance. According to Taylor, the court should have foreseen
that its ruling would foreclose his ability to challenge the admissibility of statements
made to the police. At the time of the ruling, however, the court had no reason to assess
the importance of the suppression issue because Taylor’s counsel had not informed the
court that he intended to argue that issue. Before the hearing, Taylor’s counsel had filed
only a generic omnibus motion, in which he requested “a panoply of relief based on bald,
conclusory allegations devoid of any articulated factual or legal underpinning[.]”
Denicolis v. State, 378 Md. 646, 660 (2003). Counsel had failed to make a written
motion specifying the relief sought and stating with particularity the factual and legal
grounds for that relief. See Md. Rule 4-252(e); Sinclair v. State, 444 Md. 16, 31 (2015).
The court had already generously exercised its discretion to permit the defense to cure its
deficient filing by supplementing its submissions at the hearing. See Denicolis, 378 Md.
at 660-61. The court was not required to grant an even further extension to mitigate the
consequences of trial counsel’s having inconvenienced several witnesses and no fewer
than five interpreters, as well as opposing counsel and the court itself, by failing to
manage foreseeable scheduling conflicts
Taylor also asserts that the court was required to grant a “Motion to Re-Set
Motions Hearing” filed three weeks after the pre-trial motions hearing. We see no abuse
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of discretion. See Jones v. State, 175 Md. App. 58, 84 (2007), aff’d, 403 Md. 267 (2008).
The range of discretion on a request to reconsider the denial of a postponement request is,
if anything, even more expansive than the court’s (already considerable) discretion in
weighing the underlying postponement request.22
B. Propriety of Scheduling and Holding a Joint Trial of Offenses
Taylor contends that “the trial court erred in joining the [] charges against [him]
into one trial.” Taylor has not demonstrated that the court erred or abused its discretion
by conducting a joint trial.
The State charged Taylor in seven separate indictments, each of which
corresponded to one of the seven complaining witnesses. Taylor asserts that, to pursue a
joint trial on those offenses, the State was required to file a written motion, within 30
days after the earlier of the appearance of defense counsel or Taylor’s first appearance in
court (see Md. Rule 4-252), but that the State never filed such a motion. Taylor also
asserts that under Rule 4-253(b) the parties alone may move for joinder of offenses and
that the court may not order joinder on its own motion unless both parties consent.
Assuming (without deciding) that Taylor’s legal argument is correct, the record
refutes Taylor’s factual assertions. In fact, the court did not join the cases on its own
motion, and it issued no order of joinder. Rather, in responding to a series of scheduling
22
Nonetheless, in response to a proper motion from Taylor on remand, the court,
in its discretion, may allow him another opportunity to raise his pre-trial motions. See
Md. Rule 4-252(h)(2)(C) (“[i]f the court denies a motion to suppress evidence, the ruling
is binding at the trial unless the court, on the motion of a defendant and in the exercise of
its discretion, grants a supplemental hearing or a hearing de novo and rules otherwise”).
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requests, the court scheduled and then rescheduled a consolidated trial on all charges with
the consent of both parties. The defense raised no objection to the court’s actions either
at the time of the initial decision or over the five months that followed.
On February 28, 2013, a few weeks after Taylor’s attorney entered his initial
appearance, he and Taylor appeared for a scheduling conference. After calling the case
numbers for all seven charging documents, the Assistant State’s Attorney said, “with
respect to the trial date . . . [w]e anticipate trying all seven together for judicial economy
purposes. We are hoping to get a date after all of the victims . . . are out of school.” The
judge instructed the clerk to reserve one day for motions and five days for the trial. After
some brief logistical discussions, the court informed defense counsel: “So we’ll motions
set [sic] for June 14 and the trial will be set for July 15th.” Taylor’s attorney agreed that
the trial date was acceptable and thanked the court.
In these circumstances, we see no error or abuse of discretion in the court’s
scheduling decision. See Sears v. State, 9 Md. App. 375, 380 (1970) (rejecting contention
that offenses from separate indictments were improperly consolidated for trial where “the
record disclose[d] that both the appellant and the State were satisfied to have the three
indictments tried at the same time”). “While the court passed no formal order that the
three indictments be tried together, it is apparent from the record that the joinder was with
the consent of the appellant and the State.” Id.23
23
Sears was decided under former Rule 734, a precursor to current Maryland Rule
4-235. The Court of Appeals has held that opinions citing to former Rule 734 are
appropriate sources for construing Rule 4-235, because the current language is “virtually
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To preserve the right to appellate review of the trial court’s decision to schedule a
consolidated trial (on the basis that the State failed to make its request in a timely written
motion), Taylor needed to object at the time the court made its scheduling decision. See
Md. Rule 4-323(c). Taylor’s attorney, however, affirmatively agreed to the scheduling of
the consolidated trial. Later, Taylor’s attorney failed to raise the scheduling issue at a
hearing on June 14, 2013, at which the court granted a defense request to postpone the
trial date. After that hearing, Taylor and his attorney both signed a document that
indicated their agreement to appear for a jury trial in all seven cases on October 28, 2013.
As the cases advanced to trial, Taylor’s attorney failed to raise objections or even to seek
any clarification regarding the trial schedule. See Tracy v. State, 319 Md. 452, 457
(1990) (“‘[a] defendant can lose his rights under joinder and severance law by failing to
assert them in a timely fashion’”) (citation omitted).
At last, only four weeks before the scheduled trial date for all seven cases, the
defense filed a “motion for severance” pursuant to Md. Rule 4-253(c). The supporting
memorandum argued that joinder of the offenses was impermissible because the evidence
related to each of the victims would not be mutually admissible at separate trials.
During a hearing on that motion, Taylor’s attorney argued, for the first time, that
the State had waived any request to try the cases jointly because the State had not filed a
timely motion for joinder. He represented to the court that it was “[a]bsolutely” true that
he was preparing for only a single case on the initial October trial date. He did not,
identical, in pertinent part, to [that of] its precursors.” Frazier v. State, 318 Md. 597, 607
n.7 (1990).
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however, explain which of the seven cases he expected to try first, nor offer any
explanation of how he expected to select seven juries and try all seven cases in the span
of just a few days. The circuit court found that defense counsel’s representations were
not credible.
After reviewing the transcript from the scheduling hearing on February 28, 2013,
the circuit court went on to find that the parties had mutually agreed that the cases would
be tried together. We see no clear error in that factual finding. See, e.g., Sifrit v. State,
383 Md. 77, 92-93 (2004).
The court proceeded to deny Taylor’s severance motion, finding that the request
for a severance was untimely. The court nevertheless reached the merits and determined
that severance was not required in any event. The court reasoned that evidence relating
to each victim would be admissible at separate trials to show the absence of mistake. See,
e.g., McKinney v. State, 82 Md. App. 111, 125-26 (1990). The court then concluded that
the interests of judicial economy outweighed the potential prejudice to Taylor.
Taylor does not challenge the court’s legal conclusion that the evidence of the
separate offenses would have been mutually admissible at separate trials, nor does he
dispute that the interests of judicial economy weighed heavily in favor of joinder. Taylor
argues only that the potential prejudice from joinder was substantial. In essence, he
asserts that the trial judge should have struck a different balance when it weighed these
competing considerations.
It is, however, not our practice to second-guess this type of informed exercise of a
trial court’s discretion. See Garcia-Perlera v. State, 197 Md. App. 534, 548-50 (2011)
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(“if the evidence is deemed mutually admissible, then ‘any judicial economy that may be
had will usually suffice to permit joinder unless other non-evidentiary factors weigh
against joinder’”) (quoting Conyers v. State, 345 Md. 525, 556 (1997)); Solomon v. State,
101 Md. App. 331, 348 (1994) (“we have found no Maryland decision where, once the
initial hurdle of mutual admissibility has been cleared, a decision by a trial judge to order
a trial joinder has ever been held to be an abuse of discretion”). The court did not err or
abuse its discretion by denying the motion for severance.
C. Limits on Cross-Examination of State’s Witnesses
During its case-in-chief, the State called one parent of each of the minor
complainants. The parent-witnesses testified almost entirely on the subjects of when their
daughters had been enrolled at the Maryland School for the Deaf and whether their
daughters had permission to reside overnight at the dormitory. The general purpose of
this testimony was to establish that Taylor had “permanent or temporary care or custody
or responsibility for the supervision of a minor,” an element of the crime of sexual abuse
of a minor. Md. Code (2001, 2012 Repl. Vol.), Criminal Law Art., § 3-602(b)(1); see
Ellis v. State, 185 Md. App. 522, 541-50 (2009).
Beginning with the defense’s cross-examination of the first parent-witness, the
court consistently sustained the State’s objections to questions that did not concern the
narrow topics that the witnesses had mentioned during direct examination. For example,
during the cross-examination of De.’s mother, the defense asked: “Have you ever talked
to any attorney about a civil suit regarding this incident?,” and “Do you know an attorney
by the name of Christopher Brown?” The court sustained the State’s objections to both
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questions, without comment. At a bench conference shortly thereafter, defense counsel
asked for permission to recall De.’s mother as a defense witness, and the court suggested
that the defense would need to serve her with a subpoena. The prosecutor then argued
that facts related to a civil lawsuit would be irrelevant and beyond the scope of direct
examination. Defense counsel proffered that a civil suit was “relevant to bias.”24
Taylor argues that his proposed cross-examination was proper because it
concerned a matter affecting the credibility of the State’s witness (see Md. Rule 5-
611(b)(1)), and because a party has the right to ask questions directed at proving that a
witness may be “biased, prejudiced, interested in the outcome of the proceeding, or [may
have] a motive to testify falsely[.]” Md. Rule 5-616(a)(4). Evidence of an actual or
contemplated civil lawsuit by a witness against a criminal defendant, arising from the
same set of circumstances as the criminal prosecution, may reveal a potential source of
bias, interest in the outcome of the proceedings, or motive to testify falsely. See Martin v.
State, 364 Md. 692, 699-700 (2001). From the mere pursuit of a lawsuit, jurors may infer
that the witness has “feelings of animosity” towards the accused or that the witness has “a
significant financial stake in the outcome of the criminal proceedings.” Maslin v. State,
124 Md. App. 535, 541 (1999).
The State contends that Taylor did not preserve this issue because he did not
24
The next day, the court also sustained, without discussion, objections to
questions during cross-examination of K.’s mother about whether she had consulted with
any civil attorneys regarding the case. Because Taylor was acquitted of the abuse charge
related to K., the testimony of K.’s mother in all likelihood will not be introduced at a
second trial.
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proffer the expected answers to his questions. We disagree: the substance of the proposed
examination of De.’s mother “was apparent from the context” (Md. Rule 5-103(a)(2)) of
counsel’s leading questions, which implied that De.’s mother had consulted a specific
attorney named about a civil lawsuit regarding the alleged abuse. The trial court
committed reversible error by refusing to permit Taylor to attempt to inform the jury of a
possible source of the witness’s bias or motive to testify falsely. See Martin, 364 Md. at
702; Maslin, 124 Md. App. at 541.
The State nevertheless argues that Taylor’s proposed cross-examination was
improper, on the theory that the defense’s eventual aim was to use the parent’s testimony
as a foundation to explore the credibility of the minor child. The State assumes that, after
eliciting testimony about the parent’s pursuit of a civil action, defense counsel would
have asked whether the parent told the child about the lawsuit or whether the parent
pressured the child to testify in the State’s favor. In general, a party may offer
“[e]xtrinsic evidence” of a witness’s “bias, prejudice, interest, or other motive to testify
falsely . . . whether or not the witness has been examined about the impeaching fact and
has failed to admit it.” Md. Rule 5-616(b)(3). Arguably, however, matters related to the
credibility of a witness other than the witness being cross-examined need not necessarily
be addressed during cross-examination if those matters exceed the scope of the direct
examination of that witness. See Md. Rule 5-611(b)(1).
Contrary to the State’s assertions, the court never ruled that a lawsuit arising from
the alleged abuse was irrelevant. The apparent basis for the court’s rulings was, as the
court repeatedly and consistently ruled throughout the trial, that the questions exceeded
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the permissible scope of cross-examination. The court made comments suggesting that
the defense could in fact bring out the parents’ interest in pursuing a civil suit, but only
during a direct examination after the defense had subpoenaed them and called them as
defense witnesses. In this case, however, the trial court appears to have applied a blanket
prohibition on cross-examination of the State’s witnesses on any matters that arguably
fell outside the scope of the State’s direct examination. The trial court failed to exercise
the discretion vested in it by Md. Rule 5-611(b)(1) to decide on an individualized basis
whether to “permit inquiry” during cross-examination “into additional matters as if on
direct examination.”
In deciding whether to permit a party to examine adverse witnesses on matters that
exceed the scope of direct examination, the court should assess whether the line of
questioning will disrupt the orderly presentation of evidence in a way that could cause
undue delay or confuse the jury. The court should also consider whether allowing the
testimony during cross-examination will save time and obviate the need to inconvenience
the witness and the parties by requiring the witness to be recalled.
In the instant case, the relevant interests weighed heavily in favor of permitting the
defense to complete its brief and simple inquiry during the witness’s initial appearance.
Instead of subjecting the witnesses to a few additional questions that would consume at
most a few minutes, an even greater period of trial time was spent on discussions about
whether and how the defense might be able to recall those witnesses. Furthermore, some
witnesses were left in doubt as to whether they would be required to appear. The court
abused its discretion by adopting an inflexible rule about the scope of cross-examination
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rather than weighing the circumstances related to each individual witness.25
On remand, the court must permit the defense to cross-examine each State witness
about matters affecting the witness’s credibility, including whether the witness has
pursued a civil lawsuit in connection with the alleged crimes. Only after the court
permits the defendant to pursue a basic threshold inquiry, which will give the jury
sufficient information to evaluate the particular witness’s potential biases and motives to
testify falsely, may the court impose reasonable limits on the cross-examination to
address countervailing concerns. See Merzbacher v. State, 346 Md. 391, 413-14 (1997).
In addition, even for other matters not directly connected to the witness’s credibility, the
court in controlling the scope of cross-examination must exercise sound discretion to
determine whether to allow the defense to introduce “additional matters as if on direct
examination.” Md. Rule 5-611(b)(1). The court may not, however, refuse to exercise
discretion by adopting a “hard and fast rule” (e.g., Colter v. State, 297 Md. 423, 427-28
(1983)) without making an individualized determination with reference to guiding
principles.
25
The State contends that any error from limiting the cross-examination of De.’s
mother could not have affected the jury’s verdict on the charges related to Da. The State
cites no authority for this proposed application of the harmless error doctrine. As noted
in the State’s brief, the State sought joint trial of offenses because it believed that
evidence relating to the abuse of each victim was mutually admissible. There is a
reasonable possibility that a conviction of Taylor for the sexual abuse of De. could have
influenced the jury’s verdict as to the sexual abuse of Da. See Hurst v. State, 400 Md.
397, 418-19 (2007). Moreover, under the circumstances here, the court’s broad
restrictions on the cross-examination of the State’s witnesses had a cumulative effect on
the entire trial, including rulings as to which witnesses the defense could call.
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D. Requests to Issue Subpoenas for State Witnesses
Finally, Taylor argues that the circuit court did not properly exercise its discretion
under Rule 4-265(e) to decide whether to waive the time requirements for the issuance of
subpoenas, so that Taylor could recall some of the State’s witnesses after the court
restricted his cross-examination of those witnesses. “Because the case will be remanded
for a new trial, we need not consider whether the court erred in denying appellant’s
[subpoena requests made during the trial], as he will be given another chance to request
the issuance of subpoenas without needing to ask the court to waive the rule’s time
requirements.” McCracken v. State, 150 Md. App. 330, 364 (2003).
CONCLUSION
We reverse the judgments of conviction because Taylor was denied his
constitutional right to confront and cross-examine the interpreter during the State’s case.
At the new trial, the court may, but need not, allow Taylor to re-assert his pre-trial
motions and need not sever the remaining charges against him. The court, however, must
permit Taylor to make a basic, threshold inquiry into whether the complainants’ parents
have asserted or considered asserting civil claims relating to the alleged abuse of their
children.
JUDGMENTS OF THE CIRCUIT
COURT FOR HOWARD COUNTY
REVERSED. CASE REMANDED
FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS
OPINION. COSTS TO BE PAID BY
HOWARD COUNTY.
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