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).)."

But when the prior instance of misconduct involves the immigration status of a witness, in view of the current political and societal climate on the subject, should a different standard be applied as to the limitation of a defendant's right to confront their accusers and to carve out an exception to what has been understood for decades to be professionally responsible cross-examination?

The immigration landscape in the United States has changed: In 2017, ICE recorded 143,470 administrative arrests, its greatest number of administrative arrests as compared with the prior three years. See ICE, Fiscal Year 2017 ICE Enforcement and Removal Operations Report at 2 (last accessed Nov. 18, 2019).

How is that relevant to cross-examination? Ten years ago, Prof. John Nivala, wrote the following: "Our cross-examinations must be sufficient, to not only insure that our clients have received fair process, but also that we as the lawyers conducting the cross-examination have treated the system and the witnesses involved in that system fairly." Fair Process and Fair Play: Professionally Responsible Cross-Examination, 14 Widener Law Review 453, 481-82 (2009). Is the notion of fairness for a criminal defendant and for witnesses different a decade after Professor Nivala penned those words?

Last month, in People v. Williams, 2019 NY Slip Op 29342 (Oct. 10, 2019), the Supreme Court, New York County, was faced with that vexing dilemma. In Williams, the defendant was charged with assault in the second degree. At a pre-trial conference the People informed the defendant and the court that one of the witnesses to the alleged crime did not enter this country legally. The People said the witness was still not in this country lawfully.

Williams's counsel was apoplectic: He stated on the record that he intended to vigorously cross examine the witness on their status and argued that the witness, by his behavior, "has demonstrated a willingness to not only enter the country illegally (a crime), but every day he remains in this country is a separate crime and a continuing crime." Counsel then announced that he intended to alert Immigration and Customs Enforcement authorities to the witness's presence and hoped that by so doing, "ICE will be waiting for him on Friday, once he comes off the witness stand."

Supreme Court did not have much assistance with respect to controlling New York authority, looking to People v. Anderson, 137 A.D.3d 601 (1st Dept. 2016), lv. den. 27 N.Y.3d 1128 (2016), which, although dealing with whether immigration status was fair game on cross-examination, was clearly distinguishable. Cross on status was not permitted. But in that case, the witness was legally in the United States at the time of the incident.

Moreover, the court noted that the problem concerning the witness's status arose after the incident and was still under review at the time of the trial. Therefore, immigration status did not necessarily impact credibility and was not fair game. The First Department held that the trial court's ruling prohibiting impeachment of the victim through questions regarding his immigration status fell within the court's wide latitude to place reasonable limits on cross-examination and did not deprive defendant of his right of confrontation.

The Williams court then turned to a 20-year old case out of Supreme Court, Bronx County, that was factually and procedurally on point—People v. Gonzalez, 193 Misc.2d 17 (Sup. Ct. Bronx Co. 2002). In Gonzalez, the prosecution sought to preclude the defense from cross-examining the complaining witness relative to his status as an illegal alien. Their argument was public policy only: The prosecution took the position that an unfortunate message would be sent to the criminal community that it would be open season on illegal aliens who would be fearful of coming forward. The trial court did not buy it, noting that "criminal defendants are afforded clear protections, under both the United States Constitution (Sixth and 14th Amendments) and the New York State Constitution (art. I, §6), to confront their accusers." The court then added: "This applies not only to evidence relative to the case-in-chief but also to matters of credibility."

The Gonzalez court acknowledged that "[i]n certain limited instances, complainants may be protected by having their allegedly checkered pasts placed into a zone of evidentiary untouchability." But the Bronx court concluded that "it is clear that any shielding of the complainant's illegal status from the jury could only come at the expense of the defendants' rights to confrontation and a fair trial." The prosecution's application in Gonzalez was denied.

Back to 'Williams'

The Williams court declined to follow the Bronx court of coordinate jurisdiction stating in reference to the 20-year-old Gonzalez decision that "[m]uch has changed over the years in the immigration landscape; with the removal of illegal immigrants from the United States more of a federal government priority now than in the past." The court then listed policy considerations supporting the departure from Gonzalez:

• If defendants knew they could be subject to questions about their immigration status, it might keep them from exercising their constitutional right to testify on their own behalf; and
• If witnesses know they could face the same questions they might be discouraged from reporting crime to law enforcement, thus endangering their own safety and hindering the prosecution in its ability to keep the population safe.

The trial judge ruled that questioning would not be permitted with respect to the witness's status. But the ruling was conditional:

1. An attorney was appointed for the witness.
2. If there was evidence the witness had knowingly made false statements to obtain government benefits, assumed a false identity while in the country or committed any other transgression that goes directly to credibility, then the defense would be permitted to inquire of the witness about such incidents.
3. If the People are aware of such facts, they must disclose them to the defense.
4. Counsel for the witness must advise the client of the ramifications of a response. Otherwise, that line of questioning would not be permitted.

The Williams decision, ultimately, does not stand for the proposition that witnesses with immigration issues are placed into a zone of evidentiary untouchability. In fact, that decision provides a framework to handle this delicate scenario: Prior to trial, or at least outside the presence of a jury, the court should be asked to first determine that the probative value of disclosing the immigration status of a witness outweighs the likely prejudice to that witness from that disclosure so that defendant's right to a fair trial by confronting that witness must prevail.

In the event that the witness is impeached on status, the party who offered that witness may in rebuttal present evidence of that witness's character for truthfulness. See Guide to New York Evidence rule 6.17(4).

The court's wide latitude to place reasonable limits on cross-examination must be kept in mind when faced with the immigration status issue. In People v. Gonzalez, supra, the judge admonished that "Trial courts, on the other hand, being courts of first instance and mindful of the weight of stare decisis and legislative authority, ought not to be eager to establish or declare public policy sua sponte."

In the event that cross-examination on immigration status is foreclosed, an attempt should be made to question the witness about the failure to pay taxes. The Second Circuit has held that evidence of prior criminal acts that did not result in conviction may be used to impeach a witness's credibility if such acts tend to impugn that witness's credibility. See United States v. Leonardi, 623 F.2d 746, 757 (2d Cir.), cert. denied, 447 U.S. 928 (1980). Later, in Chnapkova v. Koh, 985 F.2d 79, 82 (2d Cir. 1993), the Second Circuit held that evidence that a witness has failed for years to file a tax return is a matter that affects the witness's credibility.

If there is a consensus in our society that, in a criminal trial, the shielding of an adverse witness's illegal status from the jury should come at the expense of a defendant's right to confrontation and a fair trial, whether the defendant is a citizen or not, then we have a serious problem. The ethical reality for defense attorneys is that, regardless of what the attorney's moral or political position is on the immigration policies now in effect in the United States, the notion of professionally responsible cross-examination mandates the exploitation of the witness's illegal status to impugn credibility. 

Joseph D. Nohavicka, an attorney at Pardalis & Nohavicka in Astoria, can be reached at [email protected].