EvidenceProf Blog

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

Saturday, December 5, 2009

Crossing Over: Second Circuit Opinion Reveals Party Should Have Been Able To Invoke Fifth Amendment Privilege In Response To Immigration Interrogation

In my forthcoming essay, Crossing Over, I argue 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 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.

The recent opinion of the Second Circuit in Bonilla v. Jaronczyk, 2009 WL 4282000 (2nd Cir. 2009), contains an example of the latter situation, i.e., a situation where a party asked about immigration-related crimes should have been able to invoke his Fifth Amendment privilege against self-incrimination.

In JaronczykOfidio Bonilla, a New York State prisoner, appealed from a final judgment entered after a jury verdict in favor of the defendants-corrections officers on his claim of excessive force under 42 U.S.C. § 1983. At trial, during cross-examination of Bonilla, the defendants were permitted to inquire into specific instances of conduct bearing on Bonilla's “character for truthfulness or untruthfulness” pursuant to Federal Rule of Evidence 608(b). On Bonilla's appeal, the Second Circuit found no error with this interrogation, concluding that:

Questions regarding Bonilla's alleged use of false papers to reenter the United States illegally clearly satisfied this standard. Any other references to Bonilla's immigration status occurred in the context of defendants' inquiry into his prior convictions, evidence of which was admissible under Federal Rule of Evidence 609.

By taking a closer look at Rule 608(b), however, we can see why Bonilla should have been able to object to this first line of questioning. That Rule does provide in part that:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, 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.

The Rule, however, concludes by stating 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 that relate only to character for truthfulness.

Clearly, Bonilla's responses to the defendants' questions created a real and appreciable danger of self-incrimination because they could have been used to prosecute him for, among other possible crimes, reentering this country illegally as a removed alien under  8 U.S.C. § 1326. Thus, he should have been able to invoke his Fifth Amendment privilege against self-incrimination and refuse to answer questions on the subject.



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