Abstract

Excerpted From: Christian Powell Sundquist, Presumed Guilty: “Illegal Alien” Evidence and the Rights of Non-Citizen Defendants, 81 New York University Annual Survey of American Law 19 (2025) (244 Footnotes) (Full Document)

Criminal defendants are entitled to equal treatment under the law, regardless of their race, nationality, or immigration status. Introducing evidence of a criminal defendant's race, nationality, or immigration status in non-immigration related criminal trials, with remarkably few exceptions, amounts to “unjust and illegal discrimination[] between persons in similar circumstances” that violates the Equal Protection Clause of the Fourteenth Amendment. This bedrock constitutional doctrine was recognized generations ago by the United States Supreme Court in its seminal decision, Yick Wo v. Hopkins, which declared that our laws must be applied equally to criminal defendants without regard to their race, nationality, or immigration status. The constitutional and statutory right to have our evidentiary rules applied equally, nonetheless, has been eroded by the widespread acceptance of evidence concerning the immigration and citizenship status of undocumented non-citizen criminal defendants for the stated purposes of witness impeachment and post-verdict sentence enhancement.

State and federal courts are divided as to the admissibility of immigration status evidence in criminal prosecutions and sentencing. Some states--such as Washington, Pennsylvania, Illinois, Oregon, and California--have proactively legislated to exclude immigration status evidence for non-citizen criminal defendants. Nonetheless, other states--as well as many federal courts--routinely admit such evidence against undocumented non-citizen criminal defendants as proof of untruthfulness or a lack of fidelity to the law. The overwhelming majority of such cases involve the admission of “illegal alien” evidence against undocumented Latinx criminal defendants. While courts tend to view evidence of a Latinx criminal defendant's citizenship and immigration status as race-neutral, empirical research has demonstrated that the presentation of such evidence activates juror racial bias due to negative stereotyping of Latinx persons as “illegal aliens” and criminals. Juror expression of latent racial bias against Latinx criminal defendants is facilitated when seemingly non-racial factors (such as the defendant's citizenship and immigration status) are introduced at trial, which allow jurors to justify, and thus express, their underlying prejudice in a manner that accords with prevailing social norms.

This Article argues that the admission of evidence concerning a Latinx criminal defendant's immigration status in non-immigration related criminal trials runs afoul of our evidentiary rules concerning relevance, impeachment, character, and unfair prejudice while violating the defendant's Sixth and Fourteenth Amendment constitutional rights to a fair trial free from racial bias. While many scholars have explored the modern criminalization of immigration(“crimmigration”), and others have broadly identified how the criminal process can disadvantage non-citizen defendants, this Article is the first to provide a critical analysis of the important constitutional and statutory issues raised by the admission of immigration status evidence against non-citizen criminal defendants at trial and during sentencing. Empirical research in cognitive psychology has thoroughly demonstrated that the introduction of citizenship and immigration status evidence against a Latinx criminal defendant facilitates the expression of latent juror racial bias. One study, for example, found that evidence of a “Mexican” criminal defendant's undocumented immigration status activated racial biases that led mock jurors to convict and punish at a much higher rate as compared to situations where the jurors were not informed of the defendant's immigration status. This Article thus argues that the strategic use of a Latinx criminal defendant's immigration and citizenship status to signify criminality and untruthfulness undermines the defendant's constitutional rights to a fair trial and equal application of our evidentiary laws while reifying racialized stereotypes about Latinx persons and immigrants.

Part II of the Article examines the intersection of immigration status, nationality, and race in contemporary America. This Part examines the role of political rhetoric, selective media coverage, and racially restrictive immigration policy in promoting the social conflation of Latinx racial identity with criminality and a lack of citizenship and immigration status. Part III of the Article examines empirical psychological research on the factors that facilitate the expression of juror racial bias against criminal defendants. Jurors are much more likely to engage in racially prejudiced decision-making when they are enabled to rationalize their decisions on the basis of seemingly non-racial factors--such as proof introduced at trial regarding a Latinx criminal defendant's immigration status. Finally, Part IV of the Article explores the admissibility of evidence concerning a Latinx criminal defendant's immigration status in state and federal courts. Courts have largely allowed such evidence to be introduced during opening and closing statements, witness impeachment, and criminal sentencing, notwithstanding the empirically demonstrated risk that such evidence will enable racially biased juror decision-making in violation of the defendant's evidentiary and constitutional rights.

[. . .]

The constitutional and evidentiary rights of Latinx non-citizen defendants have long been infringed by the introduction of evidence concerning their citizenship and immigration status during non-immigration related criminal trials. A wealth of empirical psychological research has demonstrated that informing the jury that a Latinx criminal defendant is not a United States citizen and/or is an “illegal alien” greatly increases the likelihood that racial bias will infect the decision-making process. The possibility that juror racial bias will be activated by such proof is significant, especially given the recent increase in conservative political rhetoric falsely equating Latinx racial identity and immigration with criminality. The presentation of immigration status evidence--whether during opening and closing statements, as proof of substantive legal issues, for witness impeachment, or as an aggravating sentencing factor--violates the defendant's right to an impartial jury and equal application of the law.

Professor of Law, University of Pittsburgh, School of Law.