EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, January 24, 2009

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

The recent opinion of the United States District Court for the Southern District of New York in Hocza v. City of New York, 2009 WL 124701 (S.D.N.Y. 2009), is the latest example of a court finding that entering this country illegally is probative on the issue of the untruthfulness of a witness and not unduly prejudicial. 

In Hocza, Roland Hocza was injured while performing on a government contract at Rikers Island and subsequently sued the City of New York for negligence and violations of various statutory provisions.  The City thereafter sought a pre-trial ruling declaring that evidence indicating Hocza was an undocumented alien should be admissible as, inter alia, impeachment evidence in the event that Hocza testifies at trial. 

The court agreed with the City, finding that:

     "The City also seeks to present evidence with regard to Hocza's unlawful presence in the United States, arguing that the question of whether he has willfully misrepresented a material fact or perpetrated a fraud by reason of his unlawful presence in the United States bears on his credibility. Evidence of a witness's character for truthfulness is governed by Fed.R.Evid. 608.  The City may inquire as to specific instances of conduct that are relevant to the witness's character for veracity, but it may not introduce extrinsic evidence as to that conduct."

Specifically, Federal Rule of Evidence 608(b) states in relevant part that:

     "Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness...may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified."

Furthermore, impeachment evidence under Rule 608(b) is still subject to the balancing test of Federal Rule of Evidence 403, which states that:

     "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

So, according to the district court in Hocza, a witness' status as an illegal alien makes it more likely that he is lying than a witness who is a U.S. citizen or a legal alien, and this probative value on the issue of untruthfulness is not substantially outweighed by the danger of unfair prejudice by introducing the possibility of invidious discrimination on the basis of alienage.

When I posted an entry about an Eighth Circuit opinion back in December which reached a similar conclusion, I ended by noting,

     "I am really torn on the issue of whether courts should generally allow this line of questioning and whether a judge's decision to allow such questioning despite a timely objection should form the basis for reversal."

Thinking about this issue some more, I strongly disagree with the court's conclusion in Hocza.  I don't think that a person's status as an illegal alien tells us anything about the likelihood that they will be an honest or dishonest witness.  It tells us that the person was trying to make a better life for himself, his family, and/or offspring yet to come.  But if an illegal alien were to tell me what he observed at a crime scene, I would trust him no less than a legal alien or U.S. citizen.  But, in effect, courts making decisions such as the one in Hocza are telling us that we should draw a distinction, that we have reason to distrust the illegal alien based upon the way that he entered the country.  And according to these courts, not only does this evidence have this probative value, but that value is not substantially outweighed by the danger of invidious discrimination.  But isn't the alleged probative value of this evidence invidious discrimination in and of itself?



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