Evidence at issue: In criminal sexual conduct trial, defense wanted to cross-examine 13 year old victim about her immigration status to show she fabricated her story of abuse so she could apply for a U Visa. The trial court required an offer of proof but defendant couldn’t come up with anything supporting his theory. Court then allowed defense to voir dire V about her knowledge of immigration benefits. Victim stated that shortly after reaching the US, she had spoken with an immigration attorney who told her that she could apply for asylum if she was abused in her home country of Honduras. The trial court judge then jumped in and asked her directly, “Did anyone tell you you could get asylum for abuse that happened here?” to which she replied No. The trial court then ruled that any evidence about her immigration status was inadmissible under Rule 403 as its probative value was outweighed by its prejudicial effect. HELD: Court of Appeals agreed, citing the Larson case (above). They also noted that Defense would have needed to provide enough evidence in its offer of proof to show victim applied for a U visa or asylum (or at least planned to do so) and without that it was too attenuated and prejudicial. (May 23, 2022).
National Immigrant Women's Advocacy Project