Mario Tzunux-Zacarias v. Kentucky

Mario Tzunuz-Zacarias’ trial came down to whether intercourse with the alleged victim, who did not testify, was consensual, as it had allegedly been for years. Mario was neither allowed to introduce evidence of consent nor to cross-examine the officer who translated a non-contemporaneous text exchange used against him. Over the past 22 years, the Court has decided at least 11 cases to clarify, or otherwise apply, Crawford v. Washington, 541 U.S. 36 (2004), as Justice Rehnquist noted, in dissent, would be necessary. Id. at 75. None of those cases addressed if the Confrontation Clause applies where an interpreter translates a statement. Resultingly, there is “an ongoing split of authority among the federal circuit courts [and among the state courts] regarding the continuing validity of the languageconduit theory for the purpose of Confrontation Clause analysis in the wake of Crawford.” Tzunux-Zacarias v. Commonwealth, 2025 WL 2999465 (Ky.). Weighing in by a 4-3 vote, while noting “the absence of definitive guidance by the Supreme Court,” id. at *20 n.7 (Ky.) (Nickell, J., concurring in result only), Kentucky joined the Fourth, Fifth, and Ninth Circuits, Arkansas and Minnesota, holding the Confrontation Clause does not apply. The Eleventh Circuit and Armed Forces Court of Appeals, Kansas, Maryland, and Nebraska have reached the opposite conclusion. Without the Court’s intervention, how the Confrontation Clause is applied, and whether evidence that could make the difference between being acquitted or convicted is introduced, will continue to turn entirely on the state or federal jurisdiction in which the alleged criminal conduct occurred since the courts remain hopelessly split on the matter. That leaves prosecutors, defense attorneys, and trial courts with practical uncertainty on whether the language-conduit theory survives Crawford in general, and specifically where a translator is used to translate a noncontemporaneous statement or where the translator was a police officer, both of which occurred here. “[T]he thousands of federal prosecutors and the tens of thousands of state prosecutors need answers. . . .They need them now, not months or years from now.” Crawford, 541 U.S. at 75 (Rehnquist, C.J., dissenting). And this case provides an ideal vehicle through which to give them those answers and to thus put the issue to rest one way or the other. No procedural impediments to review exist, and the state court directly addressed the Confrontation Clause issue, splitting 4-3 on the issue, with three concurring justices noting the split and implicitly urging the Court to provide guidance The question presented is: Under Crawford v. Washington, 541 U.S. 36 (2004), does the Confrontation Clause apply to an interpreter’s translation of a written or oral statement; alternatively, does the Confrontation Clause apply to non-contemporaneously made translations?