Are Google Translate Translations Inadmissible Hearsay?

January 22, 2025

According to an article in the Ireland Independent,

A District Court judge has warned that evidence obtained from a defendant by using Google Translate is ‘hearsay’ which could be challenged in court….

Boncho Asenov was disqualified from driving at Cashel District Court for a combined total of three years in relation to motoring offences….

Garda Grogan said she activated the blue flashing lights and stopped Mr Asenov. She performed a search and observed that an open bottle of beer was present in the vehicle. Mr Asenov “appeared nervous,” she said.

Mr Asenov underwent a breath test which showed a ‘fail’ result. Garda Grogan said she had to use Google Translate to communicate with the driver. Mr Asenov was subsequently arrested and placed in the back of a garda car. They arrived at Cahir garda station at 3.15pm….

Garda Grogan said she activated the blue flashing lights and stopped Mr Asenov. She performed a search and observed that an open bottle of beer was present in the vehicle. Mr Asenov “appeared nervous,” she said. Mr Asenov underwent a breath test which showed a ‘fail’ result. Garda Grogan said she had to use Google Translate to communicate with the driver. Mr Asenov was subsequently arrested and placed in the back of a garda car. They arrived at Cahir garda station at 3.15pm.

So, is the judge right, at least under the definition of “hearsay” used by United States courts?

Federal Rule of Evidence 801 provides the following in pertinent part:

The following definitions apply under this article:

(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made the statement.

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

So, first, how are human translators in a case such as the Irish case treated under the rule against hearsay and the Confrontation Clause? As Nicole E. Crossey observes in Machine Translator Testimony & the Confrontation Clause: Has the Time Come for the Hearsay Rules to Escape from the Stone Age?,

The majority of circuits—specifically, the Fourth, Eighth, and Ninth circuits—have followed the language conduit theory post-Crawford. According to the language conduit theory, the translator is considered a “language conduit” of the defendant, meaning that translations are “attributed” to the defendant as if the defendant was their sole source, or declarant, and the translator did not make any assertions as to what the defendant said. In other words, the translations are the defendant’s own words, just in another language. Because the defendant’s statements would not constitute hearsay under the party-opponent exception and the defendant cannot cross-examine himself or herself, the Confrontation Clause does not apply.

Second, how are machine-generated statements treated under the rule against hearsay and the Confrontation Clause? As Crossey continues,

Some examples of machine assertions that may be “covered” under the Confrontation Clause doctrine include: “digital infrared spectrometers and gas chromatographs reporting drug levels in blood; DNA typing results; breath test results; Google Earth location data and satellite images; [and] red light camera timestamp data.” Most commentators contend when a person testifies against a criminal defendant about a machine assertion for the truth of the matter asserted, there is no hearsay problem because humans create machines, so they are the “true accusers” or declarants of any machine statements.

Supporters of this view stress that the hearsay rules only apply to human-generated hearsay and “narrowly construe” confrontation rights “as guaranteeing only the courtroom safeguards of the oath, physical confrontation, and cross-examination.” These courts and scholars reason that machines are “simply the products of mechanical processes” and “human design, input, and operation are integral to a machine’s credibility.” They do not generate testimonial hearsay since “they do not create data with any primary purpose of their own” or “act under oath or solemnly in the traditional understandings of those terms.” Therefore, because “machines are not declarants,” it is not hearsay when humans testify to out-of-court machine statements.

In contrast, other scholars and courts argue that hearsay rules and confrontation rights should be expanded to include machines because the purpose of the Confrontation Clause was to “ensure [the] reliability of evidence.” Human experts, they contend, serve as “mere scrivener[s],” merely “regurgitating the conveyances of machines [and potentially] creat[ing] a veneer of scrutiny when in fact the actual source of the information, the machine, remains largely unscrutinized.”

This is especially true for machine programming that creates a risk of error “by design.” For instance, some machines— such as machine translators—employ “machine learning,” which is defined as “computer algorithms that have the ability to ‘learn’ or improve in performance over time on some task.” As a result, machine assertions “might be false or misleading because the machine is programmed to render false information (or programmed in a way that causes it to learn to do so), is inarticulate, or has engaged in analytical missteps.” Hence, these commentators argue because machine errors are more likely to go undiscovered if the prosecution has the “ability to hide behind [machine] accusations without robust credibility testing,” machines can generate testimony and are subject to confrontation.

All of which goes to say that Google Translate translations likely would not be considered “hearsay” under current U.S. law.

Of course, that’s not top say that a defendant is without recourse in a case like this. For example, United States v. Cruz-Zamora, 318 F.Supp.3d 1264, 1272 (D. Kan. 2018), a federal court found that “it is not reasonable for an officer to use and rely on Google Translate to obtain consent to a warrantless search, especially when an officer has other options for more reliable translations.” In other words, even if a Google Translate translation isn’t hearsay, a defendant can still claim that it is insufficiently reliable to be admissible.

-CM