Immigration Status and the Right to a Fair Trial

I was picking a jury a couple years ago when one of the people waiting to be called forward to answer questions handed my bailiff a note: “Is the defendant in the country illegally?”

After the next break I had the potential jurors wait in the hall while the bailiff directed the note-writer into the courtroom. The attorneys and the defendant were present, I read the note out loud, and asked the man what his concern was.

He pointed to the man sitting next to defense counsel and said, “I just want to know if he’s here legally or not.”

I said this wasn’t really the concern of the trial, and that the only thing the jurors needed to determine is if the crime charged is proven beyond a reasonable doubt.

The man said, “I know that. But I think I’m entitled to know if he’s here illegally.”

I told him that type of information is almost never brought up as relevant to a case, and the jury probably wouldn’t hear evidence about it one way or the other. I reiterated that the jury’s job was to assess the evidence, and then I asked if he thought he could do that fairly.

He said, “Sure, but I want to know if he’s here illegally. Don’t you have a duty to look into that?”

I said immigration was generally an executive branch issue while the criminal trial was a judicial branch issue, and that I was going to focus on the trial.

The man asked, “Are you refusing to tell me if he’s here illegally or not?”



As my dad later said when I told him about the potential juror who wanted to know about an accused man’s immigration status, “What on earth does that have to do with anything in the trial?”


The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt. I am the Lord your God. (Leviticus 19:34.)

Do not pervert justice; do not show partiality to the poor or favoritism to the great, but judge your neighbor fairly. (Leviticus 19:15.)

If you really keep the royal law found in Scripture, “Love your neighbor as yourself,” you are doing right. But if you show favoritism, you sin and are convicted by the law as lawbreakers. (James 2:8-9.)

As Jesus taught us in the story of The Good Samaritan (Luke 10:25-37), being neighbors has nothing to do with national boundaries. And getting a fair trial in a courtroom should have nothing to do with immigration status.


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18 Responses to Immigration Status and the Right to a Fair Trial

  1. Laura Droege says:

    Good post, Tim.

    A few years ago in my area, an illegal immigrant was driving recklessly and crashed into another car, killing the two high schoolers inside. (He may have been under the influence of drugs or alcohol, or being chased by the police. I don’t recall.) A parent of one of the killed teens wrote a long editorial for the newspaper, blaming this man’s illegal status for the death of the child. At least one of my Facebook friends agreed, and there was no amount of reasoning that could undo this idea: if the man hadn’t been here illegally, the teens wouldn’t have been killed in this car accident.

    But even legal immigrants or natural born citizens drive recklessly, under the influence, and cause fatal crashes. The man’s illegal status had NOTHING to do with the deaths, tragic as it was. And the man’s illegal status shouldn’t stand in the way of a fair trial for his actions.

    Interestingly enough, the other teen’s parents decided to work for more rights for illegal immigrants. They, too, wrote an editorial for the paper and explained that this is what they felt God had called them to do after the death of their child. Perhaps they considered God’s instructions to the Israelites about how to treat foreigners, compared it with the average Alabama attitude toward the illegal aliens here, and saw how unjust some of the laws are. Just a guess on my part.

    • Tim says:

      “if the man hadn’t been here illegally, the teens wouldn’t have been killed in this car accident.”

      I get that type of reasoning presented in court sometimes. Just insert whatever you like for immigration status: if the person hadn’t been drunk, if the person had stayed home that night, if the person hadn’t left the car unlocked. When it comes to fair trials, we are rarely concerned with what might have happened and instead focus on what the evidence shows actually did happen.

      • Brother Jasper - Jesuit Lawyer says:

        The same reasoning applies to insurance in the state of Oregon. If you are uninsured and are not at fault, the accident is now your fault since you had no business driving- without insurance.

        Integrity, knowingly breaking one law already puts the accused in another light, even though it is a federal issue, can you as a judge ignore the federal offenses when a defendant faces you? Military bases have speed limits too, and the fines can be draconian.

        However, the accused still is accountable ONLY for the actions that brought them before you in the first place. Another judge responded to a similar case by stating that it was not germane, he did not know, and would not find out. Interestingly, the INS now BCIS agents usually wait until after the trial has finished before acting.

        To add to the mix – many states will not issue state ID cards/licenses or benefits without proper legal presence. So it can matter, some states see a growing offense, that of driving without a license.

        Lack of proper action in one area has caused a whole slew of problems in others.
        Are you still on the bench? Specific prayers for you in that capacity.

        • Tim says:

          The person’s immigration status is something the Sheriff, as the Executive Branch officer who runs the jail, looks into. I think the Sheriff notifies the federal authorities if there is an immigration status issue.

          For purposes of conducting a fair trial on the charged crime, we don’t let in irrelevant evidence.

  2. karen d says:

    This is a tough one for me (not the case at hand but the larger immigration discussion happening right now), for the simple reason that my wealth and geography effectively isolate me for the most part from the problems that illegal immigration create. So I make pronouncements from my lofty protected spot (and by “I” i actually mean “me” — this isn’t rhetorical or hypothetical). Would I have a different view if I lived in San Diego or southern Texas and was middle class? Would I have a more legitimate “right” to an opinion if I was working in my community to serve the needs of immigrants, legal or illegal? I think the discussion at the national level is mirroring your courtroom in at least this way: does the fact that my first action is illegal negate all other actions hence, until and unless I first address my first illegal move? So, to make a reductionistic comparison if I cheat on an exam and get a 79% but discover the test was unfairly graded and I should have gotten a 98%, do I have the so-called “right” to contest the grading policy? On what grounds?

    • Tim says:

      Those are thorny issues, Karen. I think everyone should be part of the discussion, but our experience will certainly limit our ability to know fully what everyone else involved in the issue is going through.

    • Headless Unicorn Guy says:

      So I make pronouncements from my lofty protected spot (and by “I” i actually mean “me” — this isn’t rhetorical or hypothetical). Would I have a different view if I lived in San Diego or southern Texas and was middle class?

      Probably. As an Anglo in SoCal, I can attest that feelings are running incredibly high and ugly when it comes to this issue.

  3. Pastor Bob says:

    As a pastoral person, there are some arenas I will not entertain this topic. When it does come up, I do my best to remain neutral. That implies responding in both directions.
    There are other areas when I will let my true feelings out. We have taken to modifying or using very different words to describe things we do and do not like. We have polarized on issues that are important, but not handled with dignity and grace. We in the church talk about WWJD, but do not act the way Jesus would. The topic at hand (pick any!) elicits words we would never say in church – but some do anyway.

    Let us not just do what Jesus would do, let us ACT the way He would.

    • Tim says:

      I am so glad there are pastors like you who care about people regardless of whether they are deemed worthy by others, Bob.

      • Carole F. says:

        And I’m so glad there are judges like you. Truly. But I kinda have to ask, just for the sake of completeness, if the immigrant phobic guy was selected for the jury? I’m thinking probably not, but I’d like to know.

        • Tim says:

          He wasn’t, but I don’t remember if he was even high enough up on the list to have made it forward for answering the questions or not. He sent his note in while still waiting to be called to the jury box for selection.

          On a related note, sometimes potential jurors say things that I am sure will lead the attorneys to excuse the person and they let the person stay anyway.

        • Headless Unicorn Guy says:

          I’ve heard that saying something obnoxious or racist is a way to get out of jury duty.
          Do not pass Go, do not collect $500.

        • Tim says:

          But HUG, if it looks to the judge like you are insincere in such sentiments it can also lead to a contempt hearing. Potential jurors are sworn to answer all questions truthfully, after all.

  4. I always love your stuff on court, Tim. Fascinating.

  5. Is probability ever used in the courtroom? I ask because I have just spent hours studying binomial distribution, where the outcome is a series of independent events with only a ‘yes’ or ‘no’ type answer. What I am vaguely getting at (because I don’t understand the mathematics fully yet) is whether probability models could be used in a courtroom as a way of guiding people into a decision based on the idea of reasonable doubt. Who knows, maybe I’ll answer the question myself further down the line.

    • Tim says:

      That would be a fascinating study, SFK. If you ever write something up on it please link me.

    • Marsha Miller says:

      I recall reading about a very old case where a statistical argument was improperly made and the conviction overturned. I may have details wrong but I remember the gist of it.

      An African American businessman went to an offsite business meeting taking a white female stenographer with him to take notes. They drove there in a red car. As they were returning from the meeting, they were stopped by police who were on the look out for a black man and white woman who had committed a robbery and gotten away in a red car. The businessman and stenographer were arrested, prosecuted, and convicted based on a statistical argument made by the prosecutor.

      He put a so called expert on the stand who argued that it was highly improbable to have an interracial pair in a car, given that interracial dating was uncommon as were interracial business associates. He came up with a figure, I will say 1 in 100,000. Then he took the percentage of red cars in the city, say one in ten and argued that the odds of the pair not being the robbers was only 1 in a million. He went on in that vein, using a number of details about the robbers and the arrested pair.

      This was a gross misuse of statistics and the case was overturned.

      That said, I do think that jurors consider probabilities in general when coming up with a verdict. I recall a juror commenting publicly about the guilty verdict after a defendant had tried to explain away one item of circumstantial evidence after another that tied him to the crime. “Either he did it or he is the unluckiest man alive.”

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