Crossing Over: California Court Cites Me in Upholding Decision to Preclude Cross-X Regarding Immigration Status

Back in 2010, I published the essay, Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes, in the Northwestern University Law Review Colloquy. Today, it was nice to see that an appellate court used it to support its decision. Let’s take a look at People v. Smith, 2014 WL 3752105 (Cal.App. 4 Dist. 2014).

In Smith, Brian Smith and codefendant Clifford Lamore Brown were convicted of burglarizing an inhabited dwelling. That dwelling belonged to the daughter of Rito Meza, who allegedly saw the men burglarizing the home when he came over the mow the lawn. Rito testified as a witness for the prosecution, and the trial court precluded the defendants from cross-examining him regarding his immigration status.

The defendants thereafter appealed, claiming that “the trial court’s refusal to allow them to cross-examine Rito on his immigration status constituted prejudicial error because Rito was the prosecution’s primary witness and illegal immigration status suggests dishonesty.” The court responded by first noting that “[p]ast criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court’s discretion under Evidence Code section 352.”

But then the court noted that,

As a preliminary matter, the parties have not provided us with any published case law establishing that illegal immigration is a crime of moral turpitude and we have not found any case law on this issue. Rather, our high court recently decided that the presence of an undocumented immigrant in the United States without lawful authorization “does not itself involve moral turpitude.” (In re Garcia (2014) 58 Cal.4th 440, 460.) As the Garcia court explained, “‘investigation into the circumstances surrounding the commission of the act must reveal some independent act beyond the bare fact of a criminal conviction to show that the act demonstrates moral unfitness.'”

The court further noted that there wasn’t even clear evidence that Rito was an illegal immigrant before finding that such a showing still wouldn’t have made a difference:

Moreover, assuming Rito testified that he entered the country illegally, further questioning would have been required to determine the reasons for his entry, the nature of his entry and whether it involved some sort of deception. (See generally, Miller, Crossing Over: Why Attorneys (and Judges) Should Not Be Able to Cross–Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes (2010) 104 Nw. U.L.Rev. Colloquy 290, 291 [arguing that under federal law, immigration status does not directly bear upon dishonesty, and even if it did, the probative value of immigration interrogation was substantially outweighed by the danger of unfair prejudice that it introduced].) In light of the possible confusion of issues and undue consumption of time, we cannot find that the court abused its discretion in excluding any evidence regarding Rito’s immigration status.

-CM