Colin Miller, a law professor at John Marshall Law School in Chicago and an editor of the EvidenceProf blog, pointed me to an essay he wrote recently about a budding tendency by some state and federal courts to allow evidence of a person's undocumented status to be used to impeach a witness. In Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes, Miller argues that immigration status should not be used for impeachment purposes for three reasons: 1) it does not have a direct bearing on honesty or dishonesty, 2) the probative value of questioning a witness about status substantially outweighs the unfair prejudice it is likely to cause, and 3) some immigration violations carry criminal consequences, thus the witness's Fifth Amendment privilege against self-incrimination may apply.

Rather than provide a play-by-play of Miller's arguments I thought I would compile the cases that he cites. (He provides links to most of these cases in his footnotes.) The following quotations are from Miller's article, not the cases cited:

In a number of cases courts have allowed questioning of witnesses' immigration status. See, e.g., United States v. Almeida-Perez, 549 F.3d 1162, 1173-75 (8th Cir. 2008); Hocza v. City of New York, 2009 WL 124701 (S.D.N.Y. 2009); United States v. Cardales, 168 F.3d 548 (1st Cir. 1999) (finding that the district court was correct in “allowing the prosecution to impeach the defendant through interrogation into his unlawful entry into Puerto Rico”); Marquez v. State, 941 P.2d 22, 26 (Wyo. 1997).

According to Miller, at least one court held that a witness may not be impeached based solely on status, but may be impeached if she committed some immigration-related crime. See EEOC v. Bice of Chicago, 229 F.R.D. 581, 583 (N.D. Ill. 2005).

In contrast, at least one court held that status can not serve as the basis for impeachment because there is not an established link between status and credibility. See Mischalski v. Ford Motor Co., 935 F. Supp. 203, 207-08 (E.D.N.Y. 1996); see also State v. Hughey, 2006 WL 2000734, No. W2004-01074-CCA-R3-CD, at *12 (Tenn. Crim. App. July 18, 2006) (“finding . . . that a trial court properly precluded a defendant from interrogating a witness regarding his illegal work status.”).

Some courts, Miller notes, have found that status is relevant to an immigration-related crime but nonetheless refused to allow questioning about status because of its unfairly prejudicial effect. See United States v. Amaya-Manzanares, 377 F.3d 39 (1st Cir. 2004) (relying on Fed. Rule Evid. 403 in a criminal prosecution); Avila v. Casa de Cambio Delgado, Inc., 236 F.R.D. 190 (S.D.N.Y. 2006) (relying on Fed. Rule. Evid. 403 and/or 611(a) in a civil proceeding).

Though only 10 pages long, Miller's essay provides sufficient detail on courts' treatment of undocumented status for impeachment purposes to give practitioners some ideas with which to launch an argument against the use of status to impeach. Given the volatile state of immigration politics in the United States I fear that this is an issue that many more attorneys representing undocumented folks in civil or criminal proceedings are going to encounter. When this essay appears as a longer article (in November in the Northwestern Law Review Colloquy), I hope to see it.