St. Mary's Law Journal


Cases prosecuted under 8 U.S.C. §1324 present special challenges for the Government and for defendants. Under §1324, it is a crime to transport or smuggle aliens into the United States. Prosecuting transporters or smugglers may present a challenge if a witness is unavailable. Even though transporting or smuggling always has witnesses—the alien(s) who hired the smuggler or transporter—not all witnesses have prolonged detentions, and some are returned to their native country. The transporter or smuggler may then assert their Sixth Amendment right. The Sixth Amendment’s Confrontation Clause requires that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. Whether, and under what conditions, the absent witnesses’ hearsay deposition testimony is admissible in a §1324 defendant’s trial has courts divided. Because of the obligations placed on the government by the Confrontation Clause, §1324(d) cannot, by itself, resolve the tension between a defendant’s right to confrontation and the need to address both the logistical and human rights implications of detaining material witnesses. While Congress cannot abrogate the requirements of the Constitution, it can, and should, draft legislation that makes it easier for the government to comply with the requirements of the Constitution. Congress has the authority to expand the government’s options for detaining witnesses who can be persuaded to stay and authorize the government to take measures to bring witnesses back to the United States. Therefore, Congress should make it easier for the government to make any necessary efforts without unduly burdening the witnesses whose testimony it seeks.


St. Mary's University School of Law