Right to confront and cross-examine a witness includes right to question witness about U-visa

On June 6, 2018, in State v. Perez, the South Carolina Court Supreme Court held Mr. Perez was prejudiced by the trial court not allowing him to cross-examine a witness about seeking a U-visa. The Court explained, “A U-visa allows victims of certain crimes, who have suffered mental or physical abuse and are helpful to the government in the investigation or prosecution of the criminal activity, to be lawfully present in the United States.”

The Confrontation Clause of the Sixth Amendment allows an accused to cross-examine a witness about a motive to provide false testimony. In Perez, the Court of Appeals found a Confrontation Clause violation but deemed the error harmless. The Supreme Court disagreed by observing, “[B]ecause there was no physical evidence of the alleged abuse, the case rested solely on credibility determinations. Thus, Perez’s opportunity to elicit testimony from the State’s witnesses regarding any potential bias was critical to his defense.”

Incases where a witness might have applied for a U-visa, defense counsel should move for the Solicitor’s Office to disclose evidence of that application.

Click this link to read the opinion in State v. Perez.