Legal Interpreter’s Telephonic Testimony
Although sometimes admissible, the use of telephonic expert witness testimony given by a foreign language translator or court interpreter is highly disfavored by the courts. In general, the courts are likely to apply the same standards of admissibility of telephonic testimony by a foreign language translator/ interpreter as they would to any type of telephonic testimony.
The main issue that arises with using telephonic testimony is that of the Confrontation Clause found in the U.S. Constitution and many state constitutions. According to the Sixth Amendment of the U.S. Constitution, one has the right to confront a witness face to face.
However, for practicality reasons, the courts have generally held the right to confrontation is not absolute.
Specifically as to the relationship between telephonic testimony and the Confrontation Clause, the courts have ruled that according to certain public policies – such as the efficient use of court resources – the use of telephonic testimony may be compelled. This is particularly true when a witness is truly unavailable.
Although there is no set rule as to when telephonic testimony satisfies this public policy exception, in general it can be stated that the party moving to admit telephonic testimony must either:
- a) Get a waiver of confrontation from the opposing party; or
- b) Demonstrate that such testimony is necessary to further an important public policy and show the expert witness is truly unavailable as a witness*.
See State v. Jacob, 494 N.W.2d 109, 119 (1993); U.S. v. Jacobs, 97 F.3d 275 (8th Cir. 1996).