Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes
Colin Miller*
You are sitting in an empty bar (in a town you’ve never 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 the new man 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?1
You are sitting in a courtroom (a place you’ve never visited), hearing an opening statement by a loud-mouthed lawyer you, as a juror, 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 people do you trust less?
According to a December 2008 opinion of the Eighth Circuit, the illegal alien is the answer, especially in light of the fact that the second line of interrogation would not be permitted. In United States v. Almeida-Perez, that court found that an extensive interrogation into the immigration statuses of defense witnesses was not plain error, relying upon First and Second Circuit opinions which had found that the way that individuals enter this country is
*Associate Professor, The John Marshall Law School; Blog Editor, EvidenceProf Blog: http://lawprofessors.typepad.com/evidenceprof/. I would like to thank Daniel Garramone for his diligent research assistance.
1 Chuck Klosterman, Sex, Drugs, and Cocoa Puffs 132 (2003) (link).
Electronic copy available at: http://ssrn.com/abstract=1474308
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relevant to their (un)truthfulness.2 In reaching this conclusion, the court acknowledged but distinguished an opinion in which the Eleventh Circuit found that a district court erred by allowing the State to question three defense witnesses about a letter the appellant sent to his neighbor proposing an adulterous liaison because that letter did “not directly relate to the Appellant's truthfulness and honesty.”3 What the Eighth Circuit did not acknowledge is that federal and state courts also routinely preclude impeachment of witnesses through inquiry into whether they have committed the act most similar to entering the country illegally: trespassing.4
This essay argues that courts err when finding that witnesses can be impeached through cross-examination regarding their immigration statuses because immigration status, in and of itself, does not have direct bearing on (dis)honesty. Second, even if immigration status does have sufficient bearing on witness honesty, the probative value of immigration interrogation is substantially outweighed by the danger of unfair prejudice it introduces. Finally, if an attorney seeks to impeach a witness based upon his immigration status or his alleged commission of some immigration-related crime, such as fraudulently obtaining documentation, the witness should be able to invoke his Fifth Amendment privilege against self-incrimination.
I. IMPEACHMENT’S REACH
Unless a witness has been convicted of a certain category of crime, he generally may be impeached only through opinion and reputation testimony and not through testimony concerning
2 549 F.3d 1162, 1173-75 (8th Cir. 2008) (link); see Colin Miller, It’s No Fun Being An Illegal Alien: Eighth Circuit Finds No Plain Error In Magistrate’s Questions About Witnesses’ Immigration Status, http://lawprofessors.typepad.com/evidenceprof/2008/12/court-interroga.html (Dec. 23, 2008).
3 United States v. Ndiaye, 434 F.3d 1270, 1290 (11th Cir. 2006).
4 See e.g., Speers v. University of Akron, 196 F.Supp.2d 551, 558 (N.D. Ohio 2002); State v. Gaytan, 972 P.2d 356, 358 (Okla.Crim.App. 1998) (link).
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specific instances of (mis)conduct. For instance, after a defendant testifies in his trial for a crime such as arson or assault, the State could call a witness for the prosecution to testify that he has been the defendant’s neighbor for ten years and that (a) in his opinion, the defendant is a liar and/or that (2) the defendant has a reputation in the neighborhood for being a liar. The prosecution witness, however, could not testify that his opinion of the defendant is based upon some specific instance of (mis)conduct, such as the witness’ knowledge that the defendant committed embezzlement.
Federal Rules of Evidence 608(a) and (b) explain this dichotomy. In relevant part, Rule 608(a) indicates that “[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation….”5 Conversely, Rule 608(b) begins by stating that “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s credibility, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence.”6
Rule 608(b), however, goes on to state that
in the discretion of the court, if probative of untruthfulness or untruthfulness, [specific instances of conduct] may be inquired into on cross-examination of the witness (i) concerning the witness’s character for truthfulness or untruthfulness, or (ii) concerning the character for truthfulness of another witness as to which character the witness being cross-examined has testified.7
In other words, if defense counsel responded to the prosecution witness by calling a defense witness to testify that he thought that the defendant was honest, the State could ask that witness on cross-examination whether he had heard that the defendant committed embezzlement, but the State could not prove this act through extrinsic evidence; it would be bound by the
5 Fed. R. Evid. 608(a) (link).
6 Fed. R. Evid. 608(b) (link).
7 Id.
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witness’ response. Moreover, the State could also ask the defendant on cross-examination whether he committed embezzlement. The problem with this latter question is that Rule 608(b) ends by cautioning that “the giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters which relate only to character for truthfulness.”8
Therefore, after the defendant testified, the prosecution could ask him whether he had committed embezzlement, but the defendant could respond by invoking his Fifth Amendment privilege against self-incrimination, assuming that he was not on trial for that alleged embezzlement. Conversely, the defense witness could not “plead the Fifth” because his testimony about the defendant’s embezzlement would not tend to incriminate him, but he could if asked about acts of embezzlement that he had committed.
II. IMMIGRATION INTERROGATION
In United States v. Almeida-Perez, José and Porfirio Almeida-Perez appealed from their convictions for being illegal aliens in possession of firearms that had been transported in interstate commerce, alleging, inter alia, that the judge (rather than the prosecutor) improperly badgered defense witnesses concerning their immigration statuses.9 As noted in the introduction, the Eighth Circuit denied their appeal, and many other courts would have reached the same conclusion, even if one of the witnesses being impeached were a party. Many state courts, such as the Supreme Court of Wyoming in Marquez v. State,10 have found that a party can be impeached based upon his immigration status, and numerous federal courts have agreed,
8 Id.
9 549 F.3d 1162, 1173-75 (8th Cir. 2008) (link).
10 941 P.2d 22, 26 (Wyo. 1997) (link).
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including the United States District Court for the Southern District of New York, in Hocza v. City of New York,11 an opinion rendered one month after Almeida-Perez.
Conversely, other courts, such as the Hocza court’s neighbor in Brooklyn, have precluded the impeachment of witnesses based upon their immigration statuses based upon the lack of an established link between such status and credibility.12 According to these courts, individuals enter this country for a variety of reasons and under a variety of circumstances, meaning that “[a]n individual’s status as an alien, legal or otherwise,…does not entitle [a court] to brand him a liar.”13 Meanwhile, some courts have found a witness cannot be impeached solely based upon his status as an illegal alien but that a witness can be impeached if he committed some immigration-related crime, such as fraudulently obtaining documentation.14
III. THE TRUTH OF THE MATTER
To determine which courts are acting properly, we must consider the types of (mis)conduct typically covered by Rule 608(b). While courts vary somewhat in enumerating the precise acts which are probative of (un)truthfulness, many courts, including the Second15 and Eighth Circuits, hold that Rule 608(b) only permits inquiry into “specific acts which may have led to an arrest if those acts related to crimen falsi, e.g., perjury, subornation of perjury, false statement, false pretenses.”16 As accomplished by most immigrants, however, the act of entering this country illegally is not an act relating to crimen falsi, i.e, an act involving deceit or false
11 2009 WL 124701 (S.D.N.Y 2009); see Colin Miller, It’s No Fun Being An Illegal Alien, Take 2: SDNY Finds That City Can Question Civil Plaintiff About His Illegal Alien Status For Impeachment Purposes, http://lawprofessors.typepad.com/evidenceprof/2009/01/608-illegal-ali.html (Jan. 24, 2009).
12 See Mischalski v. Ford Motor Co., 935 F.Supp. 203, 207-08 (E.D.N.Y. 1996).
13 Figueroa v. U.S. I.N.S., 886 F.2d 76, 79 (4th Cir. 1989).
14 See, e.g., E.E.O.C. v. Bice of Chicago, 229 F.R.D. 581, 583 (N.D. Ill. 2005).
15 See Martin v. National R.R. Passenger Corp., 1998 WL 575183, No. 97 CIV. 8381(RLE) at *3 (S.D.N.Y. Sept. 9, 1998) (construing United States v. Hayes, 553 F.2d 824, 827 (2nd Cir. 1977)).
16 United States v. Amahia, 825 F.2d 177, 181 (8th Cir. 1987).
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statement. Therefore, the opinions in Almeida-Perez and Hocza, which made no reference to the impeached witnesses using lies to enter this country, were wrongfully rendered.
Meanwhile, other courts have held that Rule 608(b) permits inquiry into a broader range of acts, such as property crimes. For instance, in State v. Williams, the Court of Criminal Appeals of Tennessee reversed two appellants’ armed robbery convictions after concluding that the trial judge erred by precluding them from impeaching a prosecution witness by asking him about an act of larceny he had allegedly committed.17 Even these courts, however, find that the act most similar to entering the country illegally, trespassing, is not an act involving dishonesty or false statement, rendering it beyond the scope of Rule 608(b). To wit, in State v. Philpott, the same court found that”[c]riminal trespass is not a crime involving dishonesty or false statement.”18 Later, recognizing the similarity between illegally entering this country and trespassing, the same court relied upon Philpott in finding in State v. Hughey that a trial court properly precluded a defendant from interrogating a witness regarding his illegal work status.19 Conversely, no court has explained how immigration status is a proper subject for impeachment while trespassing is not, nor has any court provided anything more than a cursory comment “to support the conclusion that the status of being an illegal alien impugns one’s credibility.”20
IV. DIVIDE AND PREJUDICE
Even if cross-examination regarding a witness’ immigration status were sufficiently relevant on the issue of (un)truthfulness under Rule 608(b), a court would still have to foreclose such inquiry if (1) its probative value were substantially outweighed by its prejudicial effect
17 645 S.W.2d 258, 259 (645 S.W.2d 258, 259 (Tenn.Crim.App. 1982).
18 882 S.W.2d 394, 403 n.16 (Tenn.Crim.App. 1994).
19 2006 WL 2000734, No. W2004-01074-CCA-R3-CD at *12 (Tenn.Crim.App. July 18, 2006) (link).
20 See Mischalski v. Ford Motor Co., 935 F.Supp. 203, 207-08 (E.D.N.Y. 1996).
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udice.23
under Rule 403 and/or (2) it were necessary to protect the witness from harassment or undue embarrassment under Rule 611(a).21 Indeed, in Almeida-Perez, the Eighth Circuit acknowledged on the one hand that “the relevance of an immigration violation to character for truthfulness is at least debatable” and on the other that “the use of such evidence is fraught with the danger of prejudice to a defendant by introducing the possibility of invidious discrimination on the basis of alienage.”22 While the Eighth Circuit did not take the subsequent step of finding that immigration interrogation fails to navigate the Rule 403 tightrope, it should have done so based upon the tendency of such questioning to divide and prej
Instead, as noted, the Eighth Circuit relied upon First and Second Circuit opinions in deeming the interrogation non-erroneous. The First Circuit case upon which the Eighth Circuit relied was United States v. Cardales, a 1999 opinion in which the appellate court found that the district court did not err by allowing the prosecution to impeach the defendant through interrogation into his unlawful entry into Puerto Rico.24 The Eighth Circuit would have been better served relying upon the First Circuit’s 2004 opinion in United States v. Amaya-Manzanares as, unlike Cardales, it actually addressed the prejudicial effect of immigration interrogation.25 In Amaya-Manzanares, that court reversed a defendant’s conviction for false use of a green card, finding that the district court erred by allowing the prosecution to cross-examine him regarding his unlawful entry into this country. In reversing, the First Circuit acknowledged that Amaya’s unlawful entry was relevant to the question of whether the green card was false because such entry would make “it more likely that the card is false than it would be without
21 See Fed.R.Evid. 608(b) advisory committee’s note (link).
22 United States v. Almeida-Perez, 549 F.3d 1162, 1174 (8th Cir. 2008) (link).
23 See, e.g., Salas v. Hi-Tech Erectors, 177 P.3d 769, 772 (Wash.App. Div. 1 2008) (“The use of immigration status is divisive and prejudicial”) ( link).
24 168 F.3d 548 (1st Cir. 1999) ( link).
25 377 F.3d 39 (1st Cir. 2004) (link).
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evidence of such entry; after all, an unlawful entrant would have use for a false green card, while a lawful entrant would have a far better chance of qualifying for a valid card.”26 Nonetheless, the court found that “[n]o sensible judge would be likely to let in the unlawful entry evidence to show falsity” because, inter alia,
[p]roof of Anaya’s unlawful entry is prejudicial in the sense intended by Rule 403. This is not because it hurts Amaya-all relevant evidence by the government does that-but because it introduces a factor into the case that might encourage the jury to dislike or disapprove of the defendant independent of the merits.27
Some courts also have found that immigration interrogation violates Rule 403 and/or 611(a) when the party being impeached is a civil plaintiff. For example, while the Southern District of New York approved such interrogation in Hocza, it previously proscribed a defendant-employer from inquiring into the immigration status of a former employee who had sued it for employment discrimination. In so doing, the court affirmed the findings of a magistrate, who had concluded that the probative value of such interrogation would be substantially outweighed by the harm it would cause by “discouraging illegal alien workers from litigating unlawful discrimination and other employment-related claims for fear that [being forced to] publicly disclos[e] their unlawful presence in this country would subject them to deportation proceedings.”28
V. IMMIGRATION INCRIMINATION
In some cases, immigrants do illegally enter this country through the use of some type of deceit or false statement, and in other cases, immigrants not only enter this country illegally but
26 Id. at 43.
27 Id. (emphasis added).
28 Avila v. Casa de Cambio Delgado, Inc., 236 F.R.D. 190 (S.D.N.Y. 2006).
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also commit some immigration-related crime that has direct bearing upon their honesty. For instance, in the previously mentioned opinion in Marquez, the defendant not only entered the country illegally but also used a false social security number.29 While such acts of crimen falsi present a stronger argument for impeachment than the bare act of entering this country illegally in one sense under Rule 608(b), the interrogator faces a common obstacle under the Rule: If an attorney or judge seeks to impeach a witness based upon his immigration status or his alleged commission of one of these immigration-related crimes of dishonesty (and that witness is not the subject of a deportation proceeding or a criminal defendant facing charges for one of those alleged crimes30), the witness should be able to invoke his Fifth Amendment privilege against self-incrimination. As noted, Rule 608(b) ends by cautioning that “the giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters which relate only to character for truthfulness.”31
When asked about his immigration status or one of these honesty-related crimes, an illegal alien should be able to invoke his Fifth Amendment privilege against self-incrimination32 because his response would create a “real and appreciable” hazard of incrimination and prosecution that is not “so improbable that no reasonable man would suffer it to influence his conduct.”33 Indeed, in an Advisory Opinion issued on January 30, 2009, the Maryland Judicial Ethics Committee instructed judges not to inquire into a defendants’ immigration statuses
29 941 P.2d 22, 26 (Wyo. 1997) (link).
30 See Rajah v. Mukasey, 544 F.3d 427, 441 (2nd Cir. 2008) ( link).
31 Fed. R. Evid. 608(b) (link).
32 See United States v. Bin Laden, 132 F.Supp.2d 168, 181 (S.D.N.Y. 2001) (link).
33 Brown v. Walker, 161 U.S. 591, 599 (1896) (link).
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because a defendant who entered the country illegally can be subject to criminal penalties, triggering the Fifth Amendment privilege.34
VI. CONCLUSION
As the Maryland Judicial Ethics Committee noted in its recent Advisory Opinion, “[i]t is public knowledge that there are millions of illegal aliens in the United States and that the issues arising from that fact are controversial, high-profile, and perceived by members of the public as involving national origin, race, and socioeconomic status.”35 Because immigration status has this capacity to divide and prejudice and low to no probative value on the issue of a witness’ veracity, courts should preclude immigration interrogation for impeachment purposes. When an interrogator questions a witness about his immigration status or immigration-related crimes having direct bearing on witness honesty, the witness should be able to invoke his Fifth Amendment privilege against self-incrimination.
34 Maryland Advisory Opinion 2008-43 (Jan. 30, 2009), at http://mdcourts.gov/ethics/opinions/2000s/2008_43.pdf.
35 Id.