About a year and a half ago I wrote about John Marshall Law School Professor Colin Miller’s essay, Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes, in which Miller argues that immigration status does not shed any light on a witness’s credibility, is more prejudicial than probative, and might implicate a witness’s Fifth Amendment privilege against self-incrimination thanks to the growing criminalization of immigration law violations. In short, Miller thinks immigration status has no place in impeachment.
Now an article in the Texas Bar Journal follows Miller’s helpful article with a survey of case law from across the country—with a notable emphasis on Texas naturally. Professor Lupe Salinas from Texas Southern University Thurgood Marshall School of Law—and, I’m proud to say, a native of the Paloma barrio of McAllen—teamed up with Attorneys Benny Agosto, Jr. and Eloisa Morales Arteaga to describe state courts’ consistent hesitation to admit evidence of a witness’s undocumented status. In their article, But Your, Honor, He’s an Illegal! Can the Undocumented Worker’s Alien Status be Introduced at Trial, the trio explain that “courts are recognizing the prejudice that is engendered within the terms ‘illegal alien,’ ‘illegal immigrant,’ and ‘undocumented worker.’ These courts have tried to strike a balance between this prejudice and its possible relevance. Any relevance that the alien status of an injured worker may have in a particular case is likely outweighed by its prejudicial effect.”
Adding to the cases mentioned in these articles is a recent order from federal district court judge in the Western District of Missouri who excluded evidence of a criminal defendant’s status. The defendant argued that such evidence was not relevant to guilt or innocence and, even if it was, it was unduly prejudicial. United States v. Baldenegro-Valdez, No. 10-00094-02-CR-W-DGK, slip op. at 2 (W.D. Mo. Mar. 11, 2011) (Kays, J.).
This is a list that will only continue to grow.
Update (June 23, 2011): A New York court held that a plaintiff’s immigration status was properly excluded in a case involving a construction worker who fell two stories through an improperly covered hole in the roof of the defendant’s construction project. Angamarca v. New York City Partnership Housing, 2011 NY Slip Op. 5361, 2011 N.Y. App. Div. LEXIS 5251 (N.Y. Sup. Ct. June 21, 2011).