Sunday, November 16, 2014

Statements obtained with poor translation are involuntary and hearsay

Branden A. Bell and Sarah G. Hess won in State v. Fernandez-Torres, No. 110,645 (Kan. App. Oct. 24, 2014) affirming Judge Kittel's suppression order in a Douglas County aggravated indecent liberties prosecution. 

Mr. Fernandez-Torres was not in custody and had received at least some (albeit somewhat unclear) Miranda warning, so the only issue was the voluntariness of his incriminating statements obtained when an officer was being used as a Spanish-translator during an interrogation.  The district court found that the statements were not the product of Mr. Fernandez-Torres free and independent will.  The COA held that evidence supported that finding:
The district court was particularly troubled by the last two enumerated factors: the fairness of the interrogation and Fernandez' fluency in English. We share that concern. In this case, the two factors are closely related, so we discuss them together.
Fluency in English typically comes into play when a suspect is literate in some other language but is interrogated in English.  Illustrating the seamlessness of the generically labeled factors, fluency would also be implicated if a suspect knew only English but his or her mental incapacity substantially impaired his or her ability to communicate. That situation might also bear on mental condition and, possibly, intellect. This case presents a variant because Brixius sought out a translator, so the interrogation could be conducted in Spanish—Fernandez' primary language, although Fernandez understands some spoken English. 
To be plain about it, Marino lacked the bilingual capacity and the training to function effectively as a translator in an extended interrogation about a sex crime against a child. The two experts agreed that Marino mistranslated both questions and answers and sometimes substantially paraphrased what was being said. The district court's expressed concern about whether Brixius and Fernandez were fully communicating in an effective way finds sufficient support in the record evidence.
 . . . .
Brixius' interrogation approach effectively informed Fernandez both that the police had irrefutable scientific evidence that he had touched A.L.G.'s vagina and that if he had done so only for a second his actions were "okay" and could be dealt with. The underlying message to Fernandez was this: We have overwhelming evidence against you, but if you tell us you did it just briefly, nothing much will happen to you. Brixius maneuvered Fernandez into a situation in which yielding to the suggestion would seem to carry a material benefit, though quite the reverse was true. An unwary or pliable subject—Fernandez, based on the district court's findings, fit that bill—could be induced to accede to the suggested version of events because it looked to be convenient, compliant, and advantageous. In that situation, a suspect may no longer be especially concerned about falsity of the statement. The interrogation strategy lures the subject in, snares him or her with representations about the strength of the evidence (that may or may not have any basis in fact), and then offers what appears to be a way out through admissions deliberately and incorrectly cast as significantly less legally and morally blameworthy than alternative explanations of the evidence.
. . . .
In this case, looking at the whole of the circumstances, we conclude, as did the district court, that the inculpatory statements Fernandez made to Brixius were sufficiently tainted by the interrogation process and Fernandez' vulnerability to be something less than freely given.
The COA also agreed that, because the district court could properly conclude that the statements were likely false, the statements were inadmissible hearsay under K.S.A. 60-460(f)(2)(B).

[Update: the state did not file a PR and the mandate issued on December 1, 2014.]

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