Here is the problem: The criminal defendant is an illegal immigrant who is accused of a crime. The witness for the prosecution, a non-victim, is in this country illegally. The prosecution moves in limine in a jury trial to preclude the defense from cross-examining the witness as to their immigration status.

Typically, as long as the nature of a prior bad act bears on credibility, a witness, even a defendant, can be cross-examined about that conduct. People v. Smith, 27 N.Y.3d 652, 660, 662 (2016). The objective of the examining attorney is to expose the witness’s “untruthful bent” to the jury. The Guide to New York Evidence rule 6.17 (Impeachment by Instances of Misconduct), at Note 1, points out that “misconduct that demonstrates an ‘untruthful bent,’ even though perhaps falling outside the ‘conventional category of immoral, vicious or criminal acts,’ may be a proper subject of impeachment. (People v. Walker, 83 N.Y.2d 455, 461 (1994) (impeachment by defendant’s use of alias).).”

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