Over the last several decades, most courts have held that neither the hearsay rules nor the Confrontation Clause prevent the introduction of what a non-testifying interpreter said the defendant said. But, that has not always been the majority position. The admissibility of this category of statements is an issue the courts have struggled with for over a century. The earlier courts (i.e., pre-1970s) often excluded such statements on hearsay grounds. Over time, however, many courts have become more willing to admit statements made by a non-testifying interpreter. The courts have primarily reached the conclusion that the hearsay rules permit these out-of-court statements through the use of two similar, but fundamentally different, theories: (1) the “language conduit theory”; and (2) the “agency theory.” Both theories find their genesis in Federal Rule of Evidence 801(d)(2)’s declaration that party opponent statements are exempt from the rule against hearsay.

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