How You Potentially Can Use a Witness’s Undocumented Immigration Status in Court to Strengthen Your Defense

Immigration, and particularly the issue of undocumented individuals, is very much a “hot button” issue these days. That is even true in civil and criminal trials, where a party in the case may seek to make an issue of a witness’s immigration status in order to diminish the witness in the eyes of the jury. Sometimes, Maryland law says that you can’t bring up a witness’s immigration status as a means of attacking that witness’s credibility (which is something the law calls “impeaching a witness”). In some specific circumstances, though, you may be able to use a prosecution witness’s immigration status against her in order to make her less believable in the eyes of the jury. As always, it helps to have an experienced Maryland criminal defense attorney on your side who knows all the “ins and outs” and nuances of the law, and how to use them to maximum advantage in your defense.

A recent case involving an undocumented witness provides some useful knowledge about how this process works. In the case, the state put T.K. on trial for murder. T.K. was a man who resided on the street where the shooting occurred. One the state’s key witnesses was M.L., a 15-year-old boy and a neighbor of T.K., who allegedly saw the accused shoot the victim. Another prosecution witness was M.L.’s mother, who allegedly saw T.K. running away from the scene of the shooting with a gun in his hand.

M.L. and his mother, however, were undocumented immigrants. The defense wanted to use that information to attempt to persuade the jury that the boy and his mother were not always honest and therefore not trustworthy. The trial judge didn’t allow the line of questioning and the jury convicted T.K. The Court of Special Appeals upheld that ruling on appeal.

Although T.K. lost his case and his appeal, the ruling from the appeals court is potentially very helpful for some defendants. In the course of explaining why the trial judge in T.K.’s case did not commit any error by prohibiting the defense from questioning the boy and his mother about their immigration statuses, the court laid out the situations in which an accused person can pursue that sort of line of questioning.

One scenario is if the witness has been offered some sort of benefit in direct exchange for his or her testimony. (This is something sometimes described with the Latin phrase “quid pro quo.”) As an example, if the prosecution were to say to a potential witness, “If you testify against this witness, I can help you get your application for a permanent resident alien permit (a/k/a ‘green card’) approved,” then that would be a “quid pro quo” and the defense would be entitled to ask about the witness’s status.

Similarly, if the state offered to help a potential witness “avoid an immigration-related detriment,” then the same rule applies. As an example, if a witness testifies as part of a deal in which the prosecutor agrees to help the witness avoid deportation, that is also a “quid pro quo” and opens the door to questions from the defense about the deal and the witness’s status.

Another circumstance is when the witness’s immigration status “is sufficiently probative of the witness’s credibility in the matter before the court.” So, as an example, if you could establish with persuasive evidence that the witness was testifying (falsely) against you as revenge for your having reported the witness (and the witness’s illegal status) to immigration officials, that might allow you to get the witness’s status before the jury.

All of this, of course, requires a detailed understanding of just what Maryland law says you can, and cannot, do. To put that kind of knowledge in your corner, talk to experienced Maryland criminal defense attorney Anthony A. Fatemi, who has been diligently representing the accused in Maryland for many years. To learn more, contact us at 301-519-2801 or via our online form.

More blog posts:

What Happens When the Judge Doesn’t Go Along with Your Maryland Plea Agreement?, Maryland Criminal Lawyer Blog, Feb. 7, 2019

When a Crime Does Not Qualify as a ‘Lesser Included Offense’ and How that Can Affect the Outcome of Your Maryland Criminal Case, Maryland Criminal Lawyer Blog, Sept. 6, 2018

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