Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes

Miller, Colin | February 28, 2010

You are sitting in an empty bar (in a town you’ve never before visited), drinking a Bacardi with a soft-spoken acquaintance you barely know. After an hour, a third individual walks into the tavern and sits by himself, and you ask your acquaintance who the new man is. “Be careful of that guy,” you are told. “He is a man with a past.” A few minutes later, a fourth person enters the bar; he also sits alone. You ask your acquaintance who this new individual is. “Be careful of that guy, too,” he says. “He is a man with no past.” Which of these two people do you trust less? You are a juror sitting in a courtroom (a place you’ve never visited), hearing an opening statement by a loud-mouthed lawyer you barely know. After an hour, a first witness walks into the courtroom and sits by himself on the witness stand. The lawyer’s cross-examination of the witness implies, “Be careful of that guy. He is an illegal alien.” A few minutes later, a second witness enters the courtroom; he also sits alone on the stand. The lawyer’s cross-examination of the witness implies, “Be careful of that guy. He cheats on his wife.” Which of these two people do you trust less? According to the recent opinion of one federal appellate court, the illegal alien is the answer, and the second line of interrogation is prohibited. In United States v. Almeida-Perez, the Eighth Circuit found that an extensive interrogation into the immigration statuses of defense witnesses was not plain error. The court relied upon First and Second Circuit opinions that found that the way individuals enter this country is relevant to their character for truthfulness. In reaching its conclusion, the Eighth Circuit also acknowledged—but was ultimately unpersuaded by—an analogous Eleventh Circuit decision. The Eleventh Circuit found that a district court erred when it allowed the State to question three defense witnesses about a letter written by the defendant/appellant, which proposed an adulterous liaison, because the letter did“not directly relate to the Appellant’s truthfulness and honesty.” The Eleventh Circuit’s opinion was in line with precedent from across the country, which generally holds that witnesses cannot be impeached through acts of misconduct unless such acts bear directly on their truth-telling capacity; evidence that a witness has engaged in unlawful trespass, the act most similar to entering this country illegally, cannot be used to impeach the witness under such cases.