I am in the middle of a suppresion hearing on a statement that was given by a deaf person.

The officer obtained a certified interpreter, went through all of the rights, and obtained a statement from Defendant.

However, 38.22 Sec. 3(d) requires that the interpreter be SWORN (pursuant to 38.31) before interpreting for a statement given by a deaf person.

The interpreter was not sworn. Is it inadmissible because the oath was not given? I can't find any case law.

I think it would go to the weight and not the admissibility as long as the interpreter testifies under oath at the suppression hearing that the statement is a true and correct rendition of what the defendant "said".

JSH,

My quick search didn't find any caselaw directly on point. I did, however, find some cases that seem to support Ken's theory of "goes-to-the-weight-not-the-admissibility" in the interpreter context.

Check your e-mail for that list of cases.

Let us know how the suppression hearing came out. I guess if you win, we'll definitely see some case law on this subsection.

As far as the statute is concerned, though, I don't see how it can be a "weight" thing. Sec. 3(d) says specifically that the statement is "not admissible" unless the interpreter is qualified and sworn. Not to be naive, but. . .

I argued at the suppression hearing that the oath went to the weight, and not admissibility. The judge agreed and did not suppress the statement. However, out of an abundance of caution, we pled the case for 30 years for aggravated robbery.

A wise decision. And an excellent example of how prosecutors must balance legal issues and individual facts to reach a just conclusion.