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?”


The Irrelevance of Legality

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

  1. Pastor Bob says:

    On the one hand another crime commited by an individual.
    On the other hand — [you were 9are now)] right on.
    I hope that the potential juror was sent back to the jury pool.

    • Tim says:

      What crime are you thinking was committed, PB?

      • Vashra Araeshkigal says:

        I have a great respect for most of your posts, so I am hesitant to reply as harshly as I feel. Rarely have I seen you make such glaring errors. I am uncertain of the secular/legal grounds of your argument, but the biblical ones tragically bad. Perhaps, as a “native born” child of an immigrant family, I see what you do not.

        “The foreigner residing among you must be treated as your native-born. ”

        Very well…do we not expect our native-born to obey the *whole* of our US laws and codes? Should we not expect equally as much from the foreigners among us?

        If I steal a car, and the police arrest me *after* I’ve filled the vehicle with several bricks of cocaine, will I be brought before you *only* on charges of grand theft auto? Or will additional charges, for the additional crimes which are brought to light when that car is recovered, likely be levied against me? Why is it not the same if I am found to be in flagrant violation of Title 8, Section 1325 of the U.S. Code (U.S.C.), or Section 275 of the Immigration and Nationality Act (I.N.A.)? That *is* US *LAW* ..and if I am here as an illegal immigrant, I have *violated* it.

        “Love them as yourself, for you were foreigners in Egypt.”

        There is *no* love in enabling someone’s sin. Allowing someone to defraud the State, probably create a false identity, work under the table, defraud the tax system, etc….etc…etc…is…enabling…sin. It is *impossible* to be here illegally without engaging in some form of fraud and/or theft. It just does *not* “balance out” if you steal or fake up a social security number so that you can “legally” work and pay taxes. If I rob a bank but give 50% to random charities, this will not result in me receiving a sentence of not guilty from any worthy judge, and I doubt God will let me off for good intentions either. Christ will surely forgive me….if I repent…but wouldn’t part of repentance be to “make right” as much as possible?

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

        I *completely* agree — but to let criminal infiltrators/invaders enter this nation illegally with impunity — to act as if they have not broken any law to come here that way — IS SHOWING PARTIALITY. It is very specifically allowing some people, simply because they had the tenacity (or temerity) to flagrantly ignore the protocols we have in place to visit, reside in, or naturalize to this nation, to just “get away with it.” Why is this OK? What other crimes may one get away with on these grounds?

        Would you simply dismiss the case of a thief in your courtroom because he was an otherwise poor man who stole gold jewelry from the home of a rich person, or a big screen TV from a large department store? Surely they could survive the loss of property…but where is it written, “Thou shalt not steal…you know…unless you’re stealing from someone with significantly more than you have, then it’s all good?”

        How is it NOT a perversion of justice to treat illegal immigration as though it is not a crime when it’s right there on the pages of our legal code that it is? Again, if I get arrested, one of the first things law enforcement will do is “book” me…taking my prints and matching my identity (depending on why I was arrested) on a state-wide or even *national* level, looking for outstanding warrants or other crimes for which I might be a suspect. Depending on what they find, I could face a lot more charges on my day in court than whatever it was for which I was originally arrested. WHY is immigration law (and the *violation* of it) held to be so different?!?

        And as a point of order, last I checked those who are facing a deportation hearing are eventually brought up before a *judge*. So the idea that immigration issues just aren’t in the judicial wheelhouse sounds…off…to me. I could be wrong.

        In any case, IT *MATTERS* whether someone is an illegal alien for the same reason it *matters* whether the person standing before you in court has never been arrested before or is a career criminal with a history of crimes similar to the one that brought him before you.

        EVERY illegal immigrant who came here at an age capable of free and independent thinking is a perpetrator of a “long con” – just as much as the smarmy “insurance/security/investment guy” who swindles the elderly out of their life savings over *months* of faked up relationships and phony business investments and so on. Whether or not someone is an illegal immigrant is a point that should be *highlighted* as a testimony of that person’s *character.*

        If our immigration policy is not sufficiently compassionate to the destitute and downtrodden who flee to our shores, fine…by all means, let us work to reform it. But it is not our place to ignore the current law, nor to ignore the violations of those who are breaking the law. Yet this seems to be the *unofficial* protocol in place.

        Let us love our foreign neighbors, work hard to give them the privilege and freedom and prosperity we enjoy here, while managing NOT to stumble them into sin by acting like our own laws are occasionally irrelevant when they come here the wrong way.

        • Tim says:

          Because if you violate state laws like car theft and drug dealing, the state court trial will decide those charges. If you are kso in the country illegally, the federal authorities will get involved. But whether you are guilty of violating the state laws has nothing to do with whether you have also violated federal immigration laws. They are handled by different authorities in different proceedings.

  2. That’s the classic ad hominem, isn’t it? The juror seems to be actually stating up front that he’d be evaluating the defendant on immigration status rather than on the evidence. Well, at least he alerted you in advance…

  3. FW Rez says:

    Great post!! Thanks for the reminder of where our Lord stands: Do justice, love mercy, walk humbly.

  4. nmcdonal says:

    Love your posts from the court-room….Sounds like you showed some admirable restraint 🙂

  5. Absolutely. Being neighbors does not have anything to do with abstract lines drawn on a map. The way we treat each other ought not make a difference. But, tell that to people on opposite sides of a territorial conflict … like the one certain politicians are trying to instigate in this country by raising up xenophobia …

  6. Chris says:

    I’ve sat on a jury before. I had to be a U.S. citizen to do so. You have to be a U.S. citizen to be a state judge. Being a citizen is obviously relevant in other parts of the judicial system. If it didn’t matter then judges and jurors would not be required to be citizens.

    I like everything else you write. But I don’t agree with you that this was an unreasonable or unchristian question. It went to prior criminal history and the defendant’s willingness to break U.S. laws. My grandparents legally immigrated. There is currently a reasonable policy to do so legally in place and I am grateful for that.

    I understand some people want open borders. They should work to change the laws and if this represents the will of the people they shall succeed. I’m a bit grief stricken and even a little scared that a criminal judge doesn’t think a defendant’s current and ongoing criminal activity is relevant in a criminal trial simply because the other crimes are covered under federal jurisdiction or that particular judge may not personally like the laws that exist.

    Be honest Judge Fall. If this man was provably committing ongoing federal crimes that were not immigration related, say robbing federally insured banks, would you honestly say that knowledge of that has no bearing in any part of the criminal justice process simply because the crimes committed violated federal statutes? Consider Pastor Jack Schaap currently serving 12 years in federal prison for crossing state lines to have sex with a minor. If he gets out and rapes another minor inside his state lines putting the crime in District Court, would you, as a judge, completely disregard his prior criminal acts? Does he face you with a fully clean slate, eligible now for deferred prosecution? Do you disregard the priors even in the sentencing hearing? If the answer is yes, I like you, but I would not want you as a judge in my district.

    • Tim says:

      We don’t disregard prior convictions. State law allows them to be introduced at the proper time. Jury selection is not the proper time.

      • Chris says:

        I’m curious, if the prosecutor chose to bring up the defendant’s illegal immigration status during the trial, would you allow that?

        For what’s it worth, if I was defense counsel and my client was undocumented, during the voir dire process I would want to know about any potential jurors who would be strongly biased by this information so I could consider rejecting that juror. I am part Hispanic so I know the bias can be real. I’m not sure that juror who kept asking that question wouldn’t be affected by the defendant’s immigration status in the end. It was clearly an important issue to him. Would you disallow a defense attorney asking prospective jurors what their feelings are regarding illegal immigrants? If you’d allow this question during voir dire from defense counsel then why disallow the juror bringing this up?

  7. Dave says:

    Tim, you are spot on so often, but you must consider that you might have gone too far on this one.

    “And getting a fair trial in a courtroom should have nothing to do with immigration status.” Substitute “immigration status” with “prior illegal acts”.
    “And getting a fair trial in a courtroom should have nothing to do with prior illegal acts”?.
    Does that still universally apply? Why or why not?

    Your message comes across that certain prior illegal acts, specifically illegal immigration, are special, and should be treated differently than other prior illegal acts. Is this because you believe that anyone that asks the question has indicted themselves as prejudiced on the basis of race or national origin?

    It seems you were hoping that the immigration status never became known, instead of leaving it up to the prosecution.

    I hope you are not making your court into one that “makes up” for prior harsh treatment or worldly “unfairness” and therefore granting undue favors to such defendants (by squelching the truth) not otherwise afforded to the rest of society. Tell me that is not so.

  8. Dave says:

    Tim, then please retitle your post. If the bias was only related to jury selection, then say so in the title. But the title implies that you can’t get a fair trial whatsoever if your immigration status is known to the jury. The adjusted title would be something like, “Jury Selection and Immigration Status” and not about “right to a fair trial”.

    If you really think that the defendant will be denied a fair trial if their immigration status is known, then don’t narrow your defense to jury selection.

    A totally impartial judge would be completely indifferent to whether immigration status was disclosed. You seem to be pulling for team “non-disclosure” here.

    • Tim says:

      Dave, the title and the post taken together make the point. A fair trial starts with selecting fair jurors who are not side tracked by their biases or agendas.

  9. Barb Day says:

    The people barking at Tim need to keep in mind that the jury selection was for a specific case, in a specific state, in a specific level of court. The defendant’s citizenship status was not relevant to the selection of the jury. Tim is the judge; he is not the arresting officer, the detective, the DA, or the lawyer for either side.

  10. Jennifer says:

    I think the questions asked and the points made were done so in a legitimate and respectful manner. IMO they added to the discussion and Helped me better understand both sides of the issue. I’ve seen attack oriented commenters and when done disrespectfully it takes away from the discourse. I saw no trollish comments above, unless they were deleted.

    When commenters use terms like “barking” it strongly discourages civil readers from entering into discussion. “Barking” used in this context generally refers to rabid attacks or being “barking mad” or shouting down an opponent. This is regrettable because readers are then denied different perspectives that could enlighten or open readers’ minds to different positions. Perhaps readers here want an echo chamber and not open discourse. If so, they are headed there. I know many readers stop reading blogs when blog author defenders stand on the sidelines waiting to bash anyone with questions or alternate opinions.

    • Tim says:

      Thanks, Jennifer. I thought everyone’s comments have been thoughtful and worthwhile, and none have been deleted (which only happens when a comment violates the foundational comment guideline: don’t be mean.)

  11. joepote01 says:

    I’m late on this thread, but will comment anyway. I get the concerns of those voicing opinions that illegal residence status should not be overlooked as a crime. What I don’t get is why they thought it was an appropriate question for a juror to ask.

    I’m not an attorney…so bear with me if my arguments are off or if I misquote something from memory…

    As I recall, by law in this country, we are protected from unlawful search and seizure. As I understand it, this law is intended to protect a person’s privacy unless there is some legitimate reason to suspect that person is guilty of a crime. So, for example, before police officers could conduct a search of someone’s home, they would first have to present evidence to a judge of probable cause…reasonable cause for suspicion of a crime having been committed to justify the search as being justified…in order to obtain a search warrant allowing them to perform the search.

    So what, in the case discussed, would be probable cause for investigating the defendant’s legal status? His physical characteristics? Does anyone really think a person’s appearance should be considered probable cause for an invasion of privacy for investigation of possible criminal activity?

    If the defendant had happened to be blonde haired and blue eyed, would this still be considered a reasonable question to ask? A reasonable line of investigation to pursue?

    In the case of the juror discussed in this post, skin color seems to have been his sole basis for suspicion of a crime having been committed.

    Skin color should never be considered legitimate reason for suspicion of a crime. That’s not justice…that’s just plain old racial prejudice.

    • Tim says:

      I think the man’s name and skin color were the only reasons the juror had for asking the question. The juror insisted he had a right to know, and the simple answer is no he doesn’t. Jurors need to focus on the issues in the trial and not be distracted from doing their one job: determining if guilt is proven beyond a reasonable doubt. Immigration status is irrelevant to that issue.

  12. lydia00 says:

    So, non citizens are treated in all legalities excactly the same as citizens?

    It’s obvious you have your own politcal agenda here as is your right on a blog but scary from a judge. I am very concerned you quote scripture where we see a Theocracy or Occupation. Not Gov of and by people. Christians don’t get to decide for everyone. Thank goodness.

  13. lydia00 says:

    “I think the man’s name and skin color were the only reasons the juror had for asking the question.”

    Must be nice to read minds, too. The question was about a “defendent”. If the defendent was an illegal would decision affect status?

    Btw, it’s not “hateful” or unbiblical to ask. One of the big problems is the left uses political correctness to shame and label. Even judges. We had a horrible situation here with a politically correct judge who publicly criticized a beaten and robbed family over the testimony of their young daughter who expressed fear of the defendent. It was considered hate because the defendent was a different color.

  14. lydia00 says:

    As to name and skin color mifht automatically mean one is a bigot, I am reminded of what is going on in Sweden. Victims of the increasing problem of gang rapes are not allowed to identify their attackers as foreign or of Arab descent. They are only allowed to refer to them as swedes. And of course this is reflected in the statistics. So in our quest to be politically correct, let us remember victims of our political correctness.

  15. lydia00 says:

    “What agenda? All I did was what the law says.”

    I took this article and many of your tweets to ascertain that you do have somewhat of a politically correct agenda. I am trying to figure out how our laws made by and for Citizens applies equally to non-citizens.

    • Tim says:

      Courts only have authority to deal with things in their jurisdiction. Anyone charged with a crime will face the charges in the appropriate court system. The trials are conducted the same whether the person was born here or not. We call this due process, and the United States Supreme Court said everyone regardless of birth is entitled to it, so that’s what I do.

      • lydia00 says:

        I understand that. I just don’t understand what happens after a decision.

        In case you are wondering, a family member was badly injured in a broadsided by illegals and the entire resulting process was a nightmare. Had the victim not been a well connected (and able to record license plate number) lawyer in a fancy big firm– not one thing would have have happened for justice.

  16. Julie Frady says:

    I applaud you, Tim. Now, if what I’m about to say violates your blog rules, then please delete it. I know it doesn’t address your post so much as some of those who have replied questioning why we shouldn’t just throw the book at anyone here illegally.

    I understand that some illegal immigrants are bad apples, and those should of course be deported. But the vast majority just want to stay under the radar and are otherwise law-abiding. It also seems to me that a lot of people who are SO upset about illegal immigrants and ready to demonize them do not realize that:

    Their own ancestors came to this country when immigration laws were nonexistent or so lax it was basically “if you can get here you can stay.” Most of their ancestors did not file paperwork and wait for an acceptance. They got on a boat and came here. Most of them would have been excluded by the laws in force today. To say “MY ancestors came legally — everybody else can too” is a false equivalence.

    For most of those who come across our southern border illegally, there is no realistic legal pathway for them to come here. They cannot “get in line” because there is no line for them to get in. I did not realize this until I talked with an Immigration Adjudicator and asked her lots of questions. She explained to me that immigration law is not the same for everyone. People from Country X have different rules and access to “lines” than people from Country Y. Different people within the same country have different access to “lines.” The law is NOT fair or reasonable. It is a hodgepodge of rules put together by various politicians over a long period of time for various reasons — many of which were to curry favor with a certain voting bloc. If someone is so concerned about people “getting in line” to “do it right,” then that person ought also to be concerned to lobby their Congressional representatives to do comprehensive immigration reform, because that’s the only way to fix the mess that is the law now.

    I don’t think many Americans truly realize just how desperate a person has to be to sneak across a border without authorization. A “normal” person would choose to stay where they are, where they have family and support mechanisms, where they understand the culture and language, where they have a voice — in short, a “normal” person would stay and work for change if they thought that was remotely possible. Should such a person decide leaving is more desirable than staying, s/he would choose to immigrate legally if that were a possibility. A “normal” person would not choose to leave all familial support behind and go to a place where you do not know the language or culture, where you are not wanted, where you have no voice, and where you must live the rest of your life there in the shadows, looking over your shoulder. Yet most of the people who come here illegally are normal people. They are not “invaders” trying to take over our country. They are desperate people who are trying to feed their kids and work for a decent wage.

    I do not like illegal immigration and am not advocating for open borders. I am not advocating for just “looking the other way.” Illegal immigration hurts people — both the immigrants themselves as well as the rest of us. But demonizing the illegal immigrants themselves and turning our fury almost exclusively on them only hurts already hurting people. Fixing the problem requires far more than just “border security” because no amount of security is going to be able to completely deter desperate parents who see Hope across a river. Fixing the problem will require working on all facets at the same time. Comprehensive reform is the only way to fix it. Demonizing otherwise good people will not. There has got to be a way to do this humanely, to provide a way to legalize their status for those who have been here for years and are otherwise law-abiding and contributing meaningfully to our society. Deporting recent arrivals is one thing. Deporting a person who has been here for 40 years and has kids and grandkids is quite another. We need comprehensive reform and a common sense, humane way of dealing with people. Not name-calling and demonizing.

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