Wednesday, September 16, 2009
My New Essay: Crossing Over: Why Attorneys (And Judges) Should Not Be Able To Cross-Examine Witnesses Regarding Their Immigration Statuses For Impeachment Purposes
Last December, I posted an entry about the Eighth Circuit finding that a district judge did not commit plain error by extensively interrogating defense witnesses about their immigrations statuses. In January, I followed up on that post with an entry about the United States District Court for the Southern District of New York similarly finding that a civil plaintiff could be cross-examined regarding his immigration status. At the time, I noted that I thought that the judges had reached the wrong conclusions. I decided to follow up that posts with an essay, which became Crossing Over: Why Attorneys (and Judges) Should Not Be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes. The final version of the essay will be published in the Northwestern University Law Review Colloquy in November, and you can download my initial draft now on SSRN. Here is the abstract for the essay:
In two recent opinions, courts authorized the impeachment of witnesses through cross-examination regarding their immigration statuses. They allowed such impeachment pursuant to Federal Rule of Evidence 608(b), which only permits specific act impeachment if based upon acts that are directly probative of (un)truthfulness. This essay argues that immigration status is an improper subject for impeachment because it is most akin to trespassing, which is not an impeachable offense under Rule 608, and fundamentally dissimilar from the acts related to crimen falsi, which are generally the only impeachable offenses under the Rule.
Moreover, even if immigration status were an impeachable offense under Rule 608, courts should foreclose immigration interrogation for impeachment purposes because of its capacity to divide and prejudice jurors and discourage illegal aliens from bringing legitimate lawsuits for fear of being deported. Finally, if an attorney seeks to impeach a witness based upon his alleged commission of some crime, such as fraudulently obtaining documentation, and not simply based upon his immigration status, that witness should be able to invoke his Fifth Amendment privilege against self-incrimination.