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

Colin Miller[*]

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Introduction

You are sitting in an empty bar (in a town you’ve never before visited), drinking a Bacardi with a soft-spoken acquaintance you barely know.  After an hour, a third individual walks into the tavern and sits by himself, and you ask your acquaintance who the new man is.  “Be careful of that guy,” you are told.  “He is a man with a past.”  A few minutes later, a fourth person enters the bar; he also sits alone.  You ask your acquaintance who this new individual is.  “Be careful of that guy, too,” he says.  “He is a man with no past.”  Which of these two people do you trust less?[1]

You are a juror sitting in a courtroom (a place you’ve never visited), hearing an opening statement by a loud-mouthed lawyer you barely know.  After an hour, a first witness walks into the courtroom and sits by himself on the witness stand.  The lawyer’s cross-examination of the witness implies, “Be careful of that guy.  He is an illegal alien.”  A few minutes later, a second witness enters the courtroom; he also sits alone on the stand.  The lawyer’s cross-examination of the witness implies, “Be careful of that guy.  He cheats on his wife.”  Which of these two people do you trust less?

According to the recent opinion of one federal appellate court, the illegal alien is the answer, and the second line of interrogation is prohibited.  In United States v. Almeida-Perez,[2] the Eighth Circuit found that an extensive interrogation into the immigration statuses of defense witnesses was not plain error.  The court relied upon First and Second Circuit opinions that found that the way individuals enter this country is relevant to their character for truthfulness.[3]  In reaching its conclusion, the Eighth Circuit also acknowledged—but was ultimately unpersuaded by—an analogous Eleventh Circuit decision.[4]  The Eleventh Circuit found that a district court erred when it allowed the State to question three defense witnesses about a letter written by the defendant/appellant, which proposed an adulterous liaison, because the letter did “not directly relate to the Appellant's truthfulness and honesty.”[5]  The Eleventh Circuit’s opinion was in line with precedent from across the country, which generally holds that witnesses cannot be impeached through acts of misconduct unless such acts bear directly on their truth-telling capacity; evidence that a witness has engaged in unlawful trespass, the act most similar to entering this country illegally, cannot be used to impeach the witness under such cases.[6]

Sprint/United Management Co. V. Mendelsohn: The Supreme Court Appears to Have Punted on the Admissibility of “Me Too” Evidence of Discrimination. But Did It?

By Mitchell H. Rubinstein[*]

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Introduction and Background

Employment discrimination continues to infect many employers.[1]  However, finding the source of the infection has never been easy.[2]  This Essay discusses the use of “me too” evidence where parties, usually plaintiffs, seek to buttress their case by pointing to other employees who assert that they were infected by the same disease of discrimination. Even before the Supreme Court’s first decision discussing this critically important issue, Sprint/United Management Co. v. Mendelsohn,[3] the use of “me too” evidence was controversial.[4]  It is important to analyze this case because employment discrimination cases often turn on whether the plaintiff has been able to come up with an appropriate “comparator” who was treated differently than he or she was.[5]

In examining the significance of Sprint, it is also important to be aware of the general evidentiary environment that governs federal court litigation. Under Rule 401 of the Federal Rules of Evidence (FRE), there is a low threshold for the admissibility of evidence: the evidence in question has to “only slightly affect[] the trier’s assessment of the probability of the matter to be proved.”[6]  Additionally, as the Seventh Circuit explicitly stated, Rule 403 “tilts in favor of admissibility.”[7]  Because the search for truth is imperiled by the exclusion of what would otherwise be relevant evidence, courts are required to exclude evidence under 403 only “sparingly.”[8] Thus, under this standard, courts are required to give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.[9]

Another significant evidentiary doctrine is that the law of evidence distinguishes between the admissibility of evidence and the weight that such evidence is too be afforded.[10]  Stated somewhat differently, anecdotal evidence need not be dispositive to be relevant and therefore admissible.[11]

It is also clear that the context of the “me too” evidence will also matter. This is because context almost always matters when interpreting witness statements.[12]  Therefore, it may not even be possible for the Court to ultimately lay down a specific rule applicable to all cases.[13]  One thing that is clear, however, is that these general evidentiary principles tend to support the introduction of evidence.  But these principles only provide a rough framework for analyzing whether “me too” evidence should be admissible.

There are several easy categories of “me too” cases.  Those categories include attempts to prove the presence of a culture or atmosphere of discrimination,[14] attempts to establish the existence of a hostile work environment,[15] and attempts to show a pattern or practice of discrimination[16] where the “me too” evidence concerns the same decisionmaker as the plaintiff.[17]  However, the answer to the question of whether such evidence can be admitted where, as in Sprint, different supervisors are involved is not easy.

Though scholars have characterized the Sprint decision as a “judicial punt” because of its remand on procedural grounds,[18] this Essay asserts that Sprint will turn out to be significant to the developing employment discrimination jurisprudence.  This is principally because of dicta in Justice Thomas’ unanimous opinion, which implicitly approves of the use of such evidence. While it may be difficult to precisely define the line between admissible and inadmissible “me too” evidence, it is clear that the Court rejected any type of rule that would flatly prohibit the introduction of “me too” evidence simply because the putative witnesses did not share the same supervisor as the plaintiff.

This Essay asserts that the use of “me too” evidence is likely to significantly increase as a result of the notoriety of the Sprint decision and the increasing importance of comparative-type evidence to employment discrimination litigation.[19]  Part I of this Essay discusses the state of affairs involving “me too” cases leading up to the Sprint decision.  Part II then discusses the Sprint decision itself and explains why the Supreme Court decision is significant.[20]  This Essay concludes by postulating how both employers and employees may try to make use of the Sprint decision in future employment discrimination litigation.

Coming Clean About "Junk DNA"

By Simon A. Cole[*]

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It is a challenge to reply to a response when its very title pleads that we put the issue of whether forensic DNA profiles contain predictive medical information to rest.[1]  I agree that the recent exchange between Professors Joh, Kaye, and myself has probably beaten the “junk DNA” horse past the point of expiration.  One thing we all agree upon is that the potential privacy violations engendered by the storage of forensic DNA profiles in law enforcement databases is a “distraction,”[2] as Professor Kaye puts it, from the potential privacy issues posed by the storage of DNA samples in law enforcement and other government repositories.

Nonetheless, this exchange has not been a useless exercise.  It began when I discovered Professors Joh and Kaye’s contributions during my effort to better understand—and, therefore, more clearly convey in my own writing—the state of scientific knowledge concerning the claim that the information held in law enforcement genetic databases is innocuous from a privacy standpoint.  Professor Joh asserted that the claim of innocuousness was not true,[3] and Professor Kaye countered that Professor Joh’s claim was flatly “false.”[4]  Under such circumstances, I was at a loss as to what to tell my own readers.  Therefore, I traced back Professor Kaye’s key source, and offered my own contribution to the debate, suggesting that both authors had engaged in a certain degree of oversimplification.[5]

Please, Let’s Bury the Junk: The CODIS Loci and the Revelation of Private Information

By D.H. Kaye[*]

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In a recent essay, Professor Simon Cole asks “Is the ‘Junk DNA’ designation bunk?”[1]  He concludes that in one sense, it is not.  There is no scientific evidence that the specific DNA variations used to identify the sources of crime-scene DNA perform any biological functions.  Nonetheless, he contends that this fact, in and of itself, does not obviate the concern that the specific STR profiles stored in law enforcement databases of offenders (and sometimes arrestees) might be used to extract medically or socially sensitive information.  I agree and have said as much in the past.[2]

Professor Cole also writes that “[t]he privacy threat posed by forensic STRs may not be great,”[3] but he does not explain the basis for this view, and many of his remarks could be construed as being more consistent with the opposite conclusion—that the privacy threat may well be great.  He criticizes the assurances of forensic scientists and human geneticists that, at present, “forensic DNA has no predictive value or medical significance”[4] as “misleading” and “not fully informative.”[5]  He proposes that the records of the STR types of offenders contained in existing law enforcement databases “may, in fact, be precisely the kind of ‘predictive medical information’ that concerns privacy advocates,”[6] and he refers to STRs as potential “markers” having “predictive utility.”[7]  In particular, he asserts that “the forensic STRs . . . correlate with . . . disease-causing genes”[8] and “phenotypically perceived race.”[9]  He concludes that “[i]f some forensic STRs are correlated with genes that cause physical traits, . . . the public can [and should] be informed of that fact”[10] so that it “can decide for itself whether and to what extent the privacy risk offsets the benefits of genetic databases.”[11]  The genetically influenced physical traits that he proposes are discernible from the DNA sequences used in criminal identification databases in the United States include diseases that would be of interest to insurance companies or employers and physical features associated with conventional racial categories.

These remarks require clarification.  Just as the argument that nonfunctional DNA cannot be a threat to privacy is superficial, it would be incomplete and misleading simply to inform the public that an STR profile contains information that is correlated to physical traits such as disease and possibly behavioral predispositions and hence could be used to predict whether an individual will develop a disease.  By innuendo, this formulation suggests that these nonfunctional loci, which are very weakly associated (if at all) with disease or behavior, are comparable to the loci used in much more powerful modern genetic testing for the DNA sequences of mutations that do cause disease.

This Colloquy Essay therefore analyzes in greater depth the medical and biological implications of the DNA records in the National DNA Index System (NDIS) and its local and state components.  It explains why the STR profiles are useless as a “genetic test to screen for any particular disease.”[12]  No one can say for certain what the future of genetics holds, but based on current knowledge and practice, the information coded in the databases is and will remain, with the limited exceptions noted below,[13] useful only for identification.

To develop these points, Part I briefly describes the four possible ways in which genetic loci could possess predictive or diagnostic value with regard to diseases and explains why these mechanisms have not led, and probably cannot lead, to useful screening tests with the Convicted Offender DNA Index System (CODIS) profiles in national, state, and local databases.  Part II considers the “physical traits” and familial relationships that the CODIS STRs can be used to identify.  That the profiles carry limited information about an individual’s race and familial relationships has long been part of the public dialogue, and Part II places the resulting privacy issues in perspective.  Part III comments on analogies between STR types and fingerprints, social-security numbers, and the like, employed when discussing these issues in the public forum.

Is the “Junk” DNA Designation Bunk?

By Simon A. Cole[*]

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A recent exchange on the Colloquy between Professors Joh and Kaye[1] reflects a larger debate over civil liberties and DNA databases that has been raging for several years.[2]  In an essay drawing attention to the constitutional vacuum surrounding “abandoned” DNA—that is, DNA that we shed in public as we go about our daily lives—Joh raised a host of concerns about the proliferation of DNA databases, concerns that are heightened for “abandoned” DNA.  In response, Kaye suggested that some of Joh’s concerns constituted “science fiction.”  In this Colloquy Essay, I am primarily concerned with only one of the several issues of dispute between Joh and Kaye:  whether the genetic markers used in law enforcement databases, colloquially characterized as “junk DNA,” constitute a threat to privacy.

Science Fiction and Shed DNA

By D.H. Kaye[*]

[Editor's Note:  This piece is a reply to Elizabeth E. Joh, Reclaiming "Abandoned" DNA:  The Fourth Amendment and Genetic Privacy, 100 Nw. U. L. Rev. 857 (2006) (link).]

Introduction

The year is 2025.  The population is 325 million, and the FBI has the DNA profiles of all of them.  Unlike fingerprints, these profiles reveal vital medical information.  This universal database arrived surreptitiously.  First, the Department of Defense's repository of DNA samples from all military personnel, established to identify remains of soldiers missing in action, was given to the FBI.  Then local police across the country shadowed individuals, collecting their shed DNA for the databank.  On the way, thousands of innocent people were imprisoned because they had the misfortune to have race-based crime genes in their DNA samples.  Sadly, it did not have to be this way.  If only we had passed laws against collecting and using shed DNA . . . .

This science-fiction story is loosely inspired by an essay on Reclaiming "Abandoned" DNA, by Professor Elizabeth Joh.  Her article makes "the case for special consideration of abandoned DNA" in view of the nature and "potential uses of this information."[1]  Like Joh, I believe that collecting shed DNA deserves scrutiny, as does the prospect of a universal database.[2]  Furthermore, I agree that DNA is a uniquely revealing form of trace evidence and that the legal system must recognize its power to expose an individual's genetic secrets.  Nonetheless, we part company on the threat posed by collection of "abandoned DNA."  First, the notion that abandoned DNA is a viable means for covertly building a population-wide database is implausible.  Second, any claim that the DNA profiles currently used for identification constitute "predictive medical information" is false.  Third, the prospect of preventive detention of bearers of "crime genes" lends little support to a warrant requirement.  Fourth, the practice of collecting shed DNA has no particular relationship to theories of "race" as a biological reality.

In making these points, I take no position on whether shed DNA deserves Fourth Amendment or other protection.  The scope of the Amendment will be addressed in a separate article that will show how some forms of "abandoned DNA"—or the chemical analyses of this molecule—can be brought within the Fourth Amendment.  Here, I focus on what Joh calls "the implications of abandoned DNA" as a motivation for the legal reforms she advocates.