Monday, June 26, 2017

Confrontation Clause Trumps Prohibition of Immigration Status at Trial

State v. Acacio (HSC June 15, 2017)
Background. Rainier Acacio was charged with terroristic threatening in the first degree and abuse of a family or household member. The complainant was his ex-girlfriend. At his jury trial, his ex-girlfriend testified that they were living together for two and a half years before breaking up. She testified that she still lived with him even though they were no longer in a relationship.

She testified that on New Year’s Eve, they hosted a party. After the party, while she was right outside the house, she received a call from Acacio, who was inside the house. They exchanged New Year’s greetings and the call ended. The party ended and the complainant went to her room to get ready for bed. Acacio came into her room, closed the door, and said he wanted to fix the relationship. She said that it was over between them and Acacio got “mad and emotional.” Acacio said he was going to kill himself. The complainant said, “go ahead, it’s not my fault.” Acacio left and came back with a kitchen knife. He said that he “changed his mind,” pointed the knife at her, and said, “I will kill you.” The complainant knocked the knife out of Acacio’s hand. Acacio grabbed her face and punched her in the stomach. The complainant locked herself in the bathroom and called 911.

During the cross-examination of the complainant, Rainier’s attorney tried to bring up her knowledge of Rainier’s immigration status, that she knew he was not a citizen of the United States, and that if arrested, he could “sent back to the Philippines.” The prosecution objected and the circuit court sustained it. At later points in the trial, Rainier moved for a reconsideration of the ruling and asked that the complainant be recalled. The request was denied. Acacio testified. He admitted to bringing the knife into the room “to show her that I will kill myself,” but he never pointed it at her. He was found guilty and sentenced to probation. Acacio appealed and the ICA affirmed.

The Right to Confront your Accuser. “The accused’s right to demonstrate the bias or motive of prosecution witnesses is protected by the sixth amendment to the United States Constitution, which guarantees an accused, inter alia, the right to be confronted with witnesses against him or her.” State v. Balisbisana, 83 Hawaii 109, 115, 924 P.2d 1215, 1221 (1996). The main purpose of the confrontation clause is “to secure for the opponent the opportunity of cross-examination, . . . [and] the exposure of a witness’ motivation in testifying[.]” Id. Moreover, the credibility of any witness may be attacked with evidence of bias, interest, or motive. HRE Rule 609.1(a). Such evidence is always relevant. State v. Levell, 128 Hawaii 34, 40, 282 P.3d 576, 582 (2012).

For the HSC, determining a violation of the right to show bias or motive on the complainant is a two-step analysis. First, the court must determine if “the jury had sufficient information from which to make an informed appraisal of [the complainant’s] motives and bias[.]” State v. Balisbisana, 83 Hawaii at 116, 924 P.2d at 1222. Once that threshold issue is met, the court can consider if its probative value is outweighed by the danger of unfair prejudice. Here, the HSC held that the first step was never taken.

The Threshold Issue: Give ‘em a Chance to Show Bias or Motive. The trier of fact needs sufficient information to make an informed appraisal of the complainant’s motives and biases. The HSC assessed prior cases and held that “in order to satisfy the confrontation clause, a defendant must be given the opportunity to cross-examine a witness as to his or her bias or motive.” Here, the circuit court did not. Acacio wanted to show that the complainant knew or believed that if arrested for abuse or anything, he’d be deported and removed from her life in Hawaii. He’d be sent to the Philippines. Without this knowledge or belief, the jury was unable to make a meaningful appraisal of the complainant’s bias or motive. Accordingly, the first step was not met and Acacio’s confrontation rights were violated.

Even if it Wasn’t Violated, the Rule 403 Analysis is Wrong. To guide lower courts, the HSC took up the second step: even if the jury was afforded enough information to appraise the complainant’s bias or motives, the circuit court erred in its 403 balancing analysis. Relevant evidence may nonetheless be excluded when “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” HRE Rule 403.

The HSC examined this issue and noted that although the defendant’s immigration or citizenship status is almost always irrelevant, that’s not the issue here. Acacio’s immigration status was wanted by the defense to show a bias and motive to undermine the credibility of the complainant. The circuit court erred in refusing to allow him present this evidence even though he suggested a limiting instruction. Thus, the circuit court erred in this respect too.


Nor was the Issue Harmless. Finally, the HSC addressed whether this deprivation was harmless beyond a reasonable doubt. Balisbisana, 83 Hawaii at 117, 924 P.2d at 1223. It was not. The HSC held there was a reasonable possibility that undermining the right to confront the complainant about her bias or motive to fabricate her testimony and get Acacio deported was not harmless beyond a reasonable doubt. She was the only eye witness. The case turned on the credibility of Acacio and her. Jurors needed to evaluate her credibility and presenting evidence of a motive to fabricate goes directly to that. Accordingly, it was not harmless. The case was remanded for new trial.

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