Monday, April 25, 2011
Article Of Interest: Caleb Mason's The Use of Immigration Status in Cross-Examination of Witnesses: Scope, Limits, Objections
In July 2008, I published a short essay in the Northwestern Law Review Colloquy entitled, Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes. The piece was a a quick reaction to a couple of cases I posted about on this blog (here and here) in which courts permitted inquires into the immigration statuses of witnesses. I think that the essay is a nice illustration of the virtues of the various online supplements to law reviews. I identified a hot issue and was able to give a quick take on it in a couple of months rather than the near year or longer that it takes to publish an article in a traditional law review. And that take was that courts should generally not allow such immigration interrogation. Caleb Mason, a professor at the Southwestern Law School, has now followed up on my essay, with his terrific article, The Use of Immigration Status in Cross-Examination of Witnesses: Scope, Limits, Objections, 33 Am. J. Trial Advoc. 549 (2010), and I think it does great job of engaging in a more nuanced analysis, really digging into the issue of when immigration interrogation is improper and when (and how) it might be permissible.
Professor Mason's article reads like a how-to manual for students learning about impeachment or trial attorneys preparing to argue for or against immigration interrogation, and, indeed, as I will note below, this was his intention in writing the piece. He begins by noting that
In what follows, assume that litigant "P" plans to put on witness "W." Opposing litigant "D"has a good-faith belief that W lacks legal permission to remain in the United States. Litigant P moves in limine to preclude "all questions about immigration status" when W takes the stand.
The proper analysis of this motion should proceed as follows. For each proposed line of cross, the court must ascertain whether the requirements of Rule 608 have been met by satisfying the following elements: first, whether D has alleged a specific instance of conduct; second, whether D has a good-faith basis for alleging the conduct; and third, whether the conduct is probative of W's character for untruthfulness. Even if the Rule 608 requirements are not met, D may still be able to show the possibility of bias arising from W's immigration status. In both cases, the court will have to address the balance between probativeness and unfair prejudice under Rule 403. Finally, the court will have to consider whether W would enjoy a Fifth Amendment privilege with respect to his immigration status. Each of these inquiries will require exploration of factual details about W's prior conduct.
Professor Mason then proceeds to discuss all of the nitty gritty of immigration interrogation, starting with discovery, proceeding with the required good faith basis for asking immigration-related questions, and concluding with permissible and impermissible questions and objections. You can (and should) read his article for a full discussion of the issues, (including numerous "P" & "W" hypotheticals that you could use in class) but in this post, I want to focus on three issues that he addresses:
The first paragraph of Federal Rule of Evidence 608(b) provides 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.
So, what does this mean for immigration interrogation? As Professor Mason notes, Rule 608(b)'s "threshold requirement should be dispositive in many cases, because it rules out generalized 'immigration status' questions.' Instead, "D needs to find specific-act questions." Professor Mason then lays out the possibilities for such questions:
-Attorneys should be able to ask illegal aliens about whether they willfully failed to file or engaged in identity theft and filed fraudulent returns. Of course, such questions must be preceded by fruitful factual investigations into whether such deceit occurred and cannot rest upon the presumption that all illegal aliens file false returns;
-Attorneys should be able to ask some illegal aliens about the circumstances of their entries:
-hiking or boating into the U.S. in a remote area and/or under cloak of night are acts of stealth rather then deception and likely would not support immigration interrogation;
-filing false documents or making false claims to enter the U.S. are acts of deception and would support immigration interrogation;
-courts should apply the standard agency test of reasonable foreseeability to determine whether hiding in a vehicle driven over the border is an act of deception sufficient to support immigration interrogation (i.e., was it reasonably foreseeable that the driver, the alien's agent, would have to lie to get across the border?)
Federal Rule of Evidence 608(b) allows for parties to impeach witnesses through interrogation into specific acts of untrustworthiness to prove the witness' propensity to lie and his likely conformity with that propensity on the witness stand. As Professor Mason notes, interrogation into a witness' biases is not used to prove that the witness is generally a liar but is instead used to prove that the witness has a specific reason to lie in the present cases. Thus, there can be cases when parties can impeach witnesses through evidence of bias that falls outside the scope of Rule 608(b):
-a defendant should be able to impeach an illegal alien testifying for the prosecution pursuant to a S(nitch) Visa, which allows an otherwise inadmissible person to reside in the United States as consideration for cooperation with the government (and might be able to impeach illegal aliens seeking to curry favor with immigration judges);
-parties might be able to impeach illegal aliens who fear retaliation if they testify against a party (e.g., an illegal employee might fear testifying against an employer who could turn around and report his status); and
-a defendant might be able to impeach a witness for the prosecution to prove that the witness was testifying against him because the witness knew his status and wanted to get him deported.
Fifth Amendment Objections
The second paragraph of Federal Rule of Evidence 608(b) provides 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.
In my essay, I noted that even if proposed immigration interrogation satisfies the threshold requirement Rule 608(b) and satisfies Federal Rules of Evidence 403 and 611(b) (both discussed in more detail in Professor Mason's article), an illegal alien could simply cite to this second paragraph and the Fifth Amendment to curtail such questioning. As Professor Mason notes, however, the issue is not this cut and dry. Certainly, some witnesses could claim that answering immigration interrogation would tend to incriminate them. But other witnesses might not be able to make such a claim, such as:
-certain immigrants who entered the U.S. legally but overstayed their visas;
-witnesses already punished for their illegal entries;
-hearsay declarants being impeached under Federal Rule of Evidence 806; and
-witnesses who waived the protections of the Fifth Amendment.
In other words, most immigration interrogation interrogation is objectionable, but there are certainly some cases where courts should permit it. As noted before, Professor Mason's article should be extremely useful to attorneys dealing with these types of issues, and I think that it is a fantastic vehicle through which Evidence professors can teach impeachment. I asked Professor Mason what led him to write the article, and he responded:
I think I called you up in the fall of 2009; I was teaching 608 and looking for examples of different impeachment contexts and how they would work, and I saw your blog post, and then your essay. I called you, I think, because you said in it that illegal entry wasn't a crime. I was using the issue of illegal alien witnesses as a 608 template for class discussion, and as I thought about it, I realized that although we used illegal alien witnesses all the time at my old job, I had never seen (or done) really systematic briefing on exactly how 608 applied. I'd had defense counsel lead off cross with that question, at least once that I can recall, in a matwit depo. I could not recall, nor find, a well-articulated holding anywhere on exactly when it would be a proper question and when it wouldn't, but it seemed to me, from prosecuting 1324s and 1326s, that method of entry should matter a lot, and from various other reading (like the Eric Schlosser book with its chapter on migrant farmworkers in San Diego County) that some of the standard assumptions about the inevitability of dishonesty might not apply. So I wrote this up initially as an example for my class of how a properly investigated, properly litigated impeachment inquiry would go, taking them through every step. Then I shared it with the other evidence teachers here, and my colleague Myrna Raeder told me about the Trial Advocacy journal and suggested it might fit in well there. I gave it to my class again this year as a comprehensive study guide for 608 impeachment. I'm pretty satisfied with it, for what it is-- I think it could function quite nicely as a trial prep tool.