In State v. Perez, the SC Supreme Court reversed a conviction for lewd act on a minor and assault and battery of a high and aggravated nature (ABHAN) where the trial judge refused to allow defense counsel to cross-examine a state’s witness about the fact that they had received a U-Visa based as a result of the defendant’s prosecution.

What is a U-visa? And, what subjects are fair game for cross-examination of state’s witnesses in a criminal trial?

What is a U-Visa?

A U-visa allows an undocumented immigrant to get a visa that allows them to remain in the United States legally and to get government benefits like food stamps.

In criminal cases, the solicitor’s office or victim’s advocate will often help the undocumented person to apply for and obtain the U-visa, which must be sponsored by a solicitor or law enforcement. They will often recommend that the person find an immigration attorney who can help them to apply, or even refer them to an immigration attorney.

For the most part, solicitors will refuse to talk about U-visas, deny that they took any part in getting the U-visa for the witness, and fight tooth and nail to hide it from jurors…

Why is the U-Visa an Issue for Cross-Examination?

A defendant in a criminal trial is entitled to cross-examine the witnesses against him as to any possible bias that they might have, and a failure to allow cross-examination is a violation of the Confrontation Clause (the right to confront the witnesses against you).

Some people may allege that a crime has occurred so that they can get the U-visa and remain in the country legally while using government benefits – a defendant must have the opportunity to explore this and expose it to jurors.

What Else Are Defendants Allowed to Explore on Cross-Examination?

Any bias on the part of a witness that may reflect on the witness’ reliability or credibility must be explored by the defense, and, if not permitted, is a violation of the Confrontation Clause. Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986).

Other examples include:

Davis v. Alaska, 415 U.S. 308, 318 (1974): a juvenile’s burglary conviction and probation status;

State v. Brown, 303 S.C. 169, 399 S.E.2d 593, (1991): Where a witness’s original charges had been reduced, the defendant is permitted to cross-examine as to the original charges of drug trafficking and the potential sentence – even though it is the same potential sentence the defendant is facing;

State v. Elijah Smith, 315 S.C. 547, 446 S.E.2d 411 (S.C. 1994): pending but unrelated charges;

State v. Jeffrey Jones, 343 S.C. 562, 541 S.E.2d 813 (S.C. 2001): plea bargaining in unrelated cases, to show that the witness knows the system and knows how to get a reduced sentence or dismissal through cooperation;

State v. Mizzell, 349 S.C. 326, 563 S.E.2d 315 (2002): pending charges and penalties, even though the charges are the same as the defendant’s;

State v. Sims, 348 S.C. 16, 558 S.E.2d 518 (S.C. 2002): the type of charges that are pending and potential punishments – it’s not enough to limit the answer to “yes I have charges;”

State v. Gracely, 399 S.C. 363, 731 S.E.2d 880 (2012): mandatory minimum sentences the witness is facing, even though the defendant faces the same mandatory minimums; and

State v. Pradubsri, 403 S.C. 270, 743 S.E.2d 98 (2013): the length of a witness’ potential sentence, even though it is the same as the defendant’s potential sentence.

These topics are critical to exposing bias and effectively cross-examining the “jailhouse informant,” and it is critical for the defense attorney to be familiar with these cases. Despite the caselaw, prosecutors will attempt to exclude the testimony and judges will side with the prosecutor if you do not have the case cites at hand to give to the court…

SC Criminal Defense Firm in Charleston, SC

Grant B. Smaldone is a criminal defense trial lawyer in Charleston, SC. If you’ve been charged with a criminal offense in the Charleston, Myrtle Beach, or Eastern SC areas, call now at (843) 808-2100 or contact us through our website to set up a free, confidential consultation about your charges.