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http://ssrn.com/abstract=1474308
 
 

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Crossing Over: Why Attorneys (and Judges) Should Not Be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes


Colin Miller


University of South Carolina School of Law

September 16, 2009

Northwestern University Law Review Colloquy, Vol. 104, p. 290, 2010

Abstract:     
In two recent opinions, courts authorized the impeachment of witnesses through cross-examination regarding their immigration statuses. They allowed such impeachment pursuant to Federal Rule of Evidence 608(b), which only permits specific act impeachment if based upon acts that are directly probative of (un)truthfulness. This essay argues that immigration status is an improper subject for impeachment because it is most akin to trespassing, which is not an impeachable offense under Rule 608, and fundamentally dissimilar from the acts related to crimen falsi, which are generally the only impeachable offenses under the Rule.

Moreover, even if immigration status were an impeachable offense under Rule 608, courts should foreclose immigration interrogation for impeachment purposes because of its capacity to divide and prejudice jurors and discourage illegal aliens from bringing legitimate lawsuits for fear of being deported. Finally, if an attorney seeks to impeach a witness based upon his immigration status or his alleged commission of some immigration-related crime, such as fraudulently obtaining documentation, the witness should be able to invoke his Fifth Amendment privilege against self-incrimination.

Number of Pages in PDF File: 10

Keywords: Impeachment, Immigration, Cross-Examination

JEL Classification: K41, K42

Accepted Paper Series


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Date posted: September 16, 2009 ; Last revised: September 19, 2012

Suggested Citation

Miller, Colin, Crossing Over: Why Attorneys (and Judges) Should Not Be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes (September 16, 2009). Northwestern University Law Review Colloquy, Vol. 104, p. 290, 2010. Available at SSRN: http://ssrn.com/abstract=1474308

Contact Information

Colin Miller (Contact Author)
University of South Carolina School of Law ( email )
Main & Greene Streets
Columbia, SC 29208
United States
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