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National Crime Victim Law Institute

State v. Gonzales, No. W2017-000941-CCA-R3-CD, 2018 WL 5098204 (Tenn. Crim. App. Oct. 18, 2018) (slip copy)

November 29, 2018

Defendant was convicted of rape of a child and aggravated sexual battery and received a 50-year sentence.  In a “jury-out hearing” during trial, the trial court had denied defendant’s request to cross-examine the child-victim’s mother and aunt about any bias created by potential U-Visa eligibility resulting from the criminal conduct.  The trial court ruled that the question was not relevant to any issue at trial and noted that the witnesses did not know about the visa prior to the child-victim’s allegations.  On appeal, defendant argued, inter alia, that the trial court erred by not allowing him to cross-examine the witnesses about possible bias relating to U-Visa eligibility.  Citing the immigration pathway the U-Visa creates, the appellate court reasoned that the witnesses’ immigration statuses were relevant because witness credibility includes interests that predate the claimed offense and interests that exist at the time of testimony.  The court indicated that the U-Visa’s “helpfulness” requirement could create an incentive to fabricate or exaggerate claims and found that, although the witnesses’ immigration statuses could be prejudicial, defendant’s right to cross-examine the witnesses outweighs any prejudice.  The court held that for these reasons, the trial court abused its discretion by not allowing defense counsel to cross-examine the witnesses about their possible bias, but decided that the trial court’s error was harmless beyond a reasonable doubt.  The court found no reversible error and affirmed the trial court’s judgments.