Background
During a family argument, Shong Xiong, whose primary language is Hmong, pointed a kitchen knife at her son and verbally threatened to kill him. A jury convicted her of unlawful use of a weapon and menacing.
At trial, the court admitted body-camera video of Xiong speaking with a police officer through a telephonic interpreter. Xiong did not object. She later sought to introduce a Hmong-language cellphone recording of a post-incident family conversation and have a court interpreter interpret it for the jury, arguing that it contradicted her daughter-in-law’s testimony. The court excluded the recording. Xiong also did not request uniform jury instructions concerning her right to an interpreter and prohibiting negative inferences from her use of one.
The Court’s Holding
The Oregon Court of Appeals affirmed. Although an out-of-court interpretation of a non-English speaker’s statements can constitute hearsay, the trial court did not plainly err by admitting the body-camera video. The video was offered as a whole, portions of it were undisputedly admissible, and Xiong expressly stated that she had no objection. The trial court had no obligation to identify and exclude particular interpreted statements on its own.
The court also held that the cellphone recording was not admissible for Xiong’s stated purpose of impeachment by contradiction. Counsel represented that the recording showed Xiong denying that she threatened her son or grabbed a knife, while the daughter-in-law had denied hearing Xiong say that she held a knife because she was cooking. Those statements concerned different facts and were not sufficiently contradictory. Because exclusion was proper, the court did not reach whether the trial court should have permitted a court interpreter to interpret the recording. Finally, the omission of UCJI 1002 and 1002A was not plain error because Xiong did not request them and identified no authority requiring courts to give them sua sponte whenever an interpreter is used.
Key Takeaways
- A trial court does not plainly err by failing to sua sponte isolate and exclude allegedly hearsay interpretations within an otherwise admissible recording when no specific objection is made.
- Impeachment by contradiction requires evidence addressing the same precise fact as the testimony to be impeached.
- Absent a request or controlling authority imposing a sua sponte duty, failure to give uniform interpreter-related jury instructions is not plain error.
Why It Matters
The decision underscores the importance of preserving interpreter-related evidentiary and instructional issues at trial through specific objections and requested instructions. An appellate claim that an interpretation constitutes hearsay may fail under plain-error review even when such interpretations can qualify as hearsay.
The opinion also illustrates the narrow scope of impeachment by contradiction: a recording is not admissible for that purpose merely because it concerns the same broader incident; it must contradict the witness’s testimony about the same precise fact. The memorandum opinion is nonprecedential under ORAP 10.30 and may be cited only as that rule permits.