A-8259064.
Decided by Board September 3, 1954.
Evidence — Hearsay — Witnesses.
Where timely objection is made by an alien at a warrant hearing to the receipt in evidence of recorded testimony previously given by others in a criminal prosecution against such alien, she has a right to be confronted with the witnesses for purposes of cross-examination and, where such witnesses are available and not produced, their statements are neither competent nor probative evidence to sustain a finding of deportability.
CHARGE:
Warrant: Immigration and Nationality Act — Section 241 (a) (12) — Engaged in prostitution at any time after entry.
BEFORE THE BOARD
Discussion: The case comes forward pursuant to certification of the order of the special inquiry officer dated July 9, 1954, directing that the proceedings be terminated.
The record relates to a native and citizen of Cuba, 24 years old, female, who last entered the United States at the port of Tampa, Florida, on December 13, 1952, and was admitted for permanent residence. The warrant of arrest charges that the respondent is subject to deportation under the provisions of section 241 (a) (12) of the Immigration and Nationality Act in that by reason of conduct, behavior or activity after entry she became a member of one of the classes specified in section 212 (a) (12), to wit: aliens who have engaged in prostitution.
The respondent has testified under oath in these proceedings and has denied that she was ever a prostitute or that she engaged in prostitution. The only evidence in support of the charge contained in the warrant of arrest consists of a record in the City Magistrates' Court of the City of New York in the case of People V. M---- L----, containing the affidavit of a police officer, the complaining witness in the proceeding, charging that the defendant, the respondent herein, violated the provisions of section 887, subdivision (4), clause (a) of the Code of Criminal Procedure of the State of New York in that she did offer to commit prostitution with one K---- T----, demanding and receiving the sum of $5.00 therefor and did commit said act with said T----. The remaining evidence consists of the stenographer's minutes of a trial in the City Magistrates' Court of the City of New York, Women's Court, Borough of Manhattan, in the same case. Counsel for the respondent has objected to the admissibility of these documents and has also demanded that the witnesses who testified in the criminal proceeding be required to appear at the deportation hearing for the purpose of confrontation and cross-examination. The examining officer, in behalf of the Immigration Service, declined to produce those witnesses in the deportation hearing, without indicating that such witnesses were unavailable or not procurable.
The question presented is whether the Service has sustained the burden of establishing deportability upon the basis of reasonable, substantial, and probative evidence. The first source of evidence to support the charge that the respondent engaged in prostitution is the record of conviction of violation of section 887 (4) (a) of the Code of Criminal Procedure of the State of New York which provides:
Sec. 887. The following persons are vagrants:
4. A person (a) who offers to commit prostitution.
The supporting affidavit of the police officer charges that the defendant offered to commit prostitution with one K---- T----, demanding and receiving the sum of $5.00 therefor and did commit said act with said T----. After trial the respondent was found guilty of violation of section 887 (4) (a) as a person who offers to commit prostitution. It is doubtful that a conviction under this section, which has been held not to constitute crimes or misdemeanors but only quasi-criminal or statutory offenses, of offering to commit prostitution satisfies a deportation charge that the respondent engaged in prostitution. Manifestly, there may be an offer to commit an act of prostitution without actually engaging in such prostitution. Under the New York statute, the violation of section 887 (4) (a) lies in the vagrancy not the prostitution.
The only source of evidence relied upon to sustain the charge is the stenographer's notes of the minutes of the testimony in the criminal hearing. It appears that the defendant in the criminal proceedings was represented by counsel and that opportunity was presented for cross-examination and that the witnesses were in fact cross-examined by counsel. It is believed that this former evidence would be admissible, subject to one important condition which will be discussed later. Even if hearsay, the evidence would be admissible as long as it was probative of the matter in issue. This former testimony was subject to cross-examination and does not fall within the scope of the hearsay rule which signifies a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of the cross-examination. The hearsay rule excludes testimonial statements not subjected to cross-examination; when, therefore, a statement has already been subjected to cross-examination and is admitted, as in the case of testimony at a former trial, it comes in because the rule is satisfied, not because it is an exception to the rule. The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring not necessarily an actual cross-examination, but merely the opportunity to cross-examine if desired.
5 Wigmore on Evidence, sections 1370, 1371.
It has long been settled as one of the exceptions to the general rule excluding hearsay that the testimony of a witness given in a former action or at a former stage of the same action is competent in a subsequent action or a subsequent proceeding in the same action where it is shown that the witness is dead and the parties and questions in issue are substantially the same. However, the former testimony of a witness cannot be used if the witness is still available for the purpose of testimony.
5 Wigmore on Evidence, section 1415.
It is believed to be a fatal defect to the competency and probative value of the former testimony of the witnesses that these witnesses were apparently available but were not produced for the purpose of confrontation and cross-examination. The process of confrontation has two purposes, the first main and essential, the other secondary and dispensable: (1) to secure for the opponent the opportunity of cross-examination; and (2) to present the elusive and incommunicable evidence of the witness' deportment while testifying. The latter may be dispensed with if the witness is not available or obtainable for good and satisfying reasons.
Thus it has been held that in deportation proceedings verified or unverified statement by inspectors and others are ex parte and incompetent if the makers are not produced for cross-examination by the alien. Where statements of three persons were taken at time of a raid and were put into evidence to support a prostitution charge, upon demand, two of the three witnesses were required to be produced for cross-examination and the third witness, who could not be found, was excused. Where an opportunity of cross-examination was demanded and might be afforded by the production of the witnesses, it may be an unfair hearing if they are not produced.
Qwock So Mui v. Nagle, 11 F. (2d) 492 (1926).
United States ex rel. Ng Wing v. Brough, 15 F. (2d) 377 (1926).
In a deportation proceeding for causing a woman to be transported in interstate commerce, an affidavit of a witness used in a criminal prosecution under the Mann Act was introduced into evidence at the hearing but the witness was not produced and no showing was made that such witness was not procurable. The court held that even in such administrative proceedings, fundamental and essential rules of evidence and procedure must be observed including the right of cross-examination. Similarly, in a deportation proceeding for managing a house of prostitution and receiving the earnings of a prostitute, a demand for cross-examination was made to the Commissioner after the hearing of witnesses whose ex parte affidavits were used during the hearing but who were not produced for cross-examination. The refusal to produce and permit cross-examination of such witnesses rendered the proceedings unfair. Exception to this rule of confrontation and cross-examination is made where the statements of the witnesses are not controverted or no desire is expressed to have such witness produced. In a suit for declaratory judgment for United States citizenship under 8 U.S.C. 903, a copy of testimony of an adverse witness before a board of special inquiry was held to be not admissible in the declaratory judgment suit, over objection, where the witness was available but not produced.
Maltez v. Nagle, 27 F. (2d) 835 (1928).
United States ex rel. Karpathiou v. Schlotfeldt, 106 F. (2d) 928 (1939).
Wong Wing Foo v. McGrath, 196 F. (2d) 120 (1952).
From the authorities cited, it would appear that where objection is made, there is a right on the part of the alien to be confronted with the witnesses for purposes of cross-examination and confrontation, and where such witnesses are available, it is not sufficient to rely merely upon their former testimony in another proceeding. In the instant case there has been a refusal to produce the witnesses, upon demand which was timely, since made during the hearing even though not made at the time of the introduction into evidence of the record of former testimony. There was no explanation that these witnesses were not available or procurable, and it must be presumed that the failure to produce the witnesses was willful and that they were available. Under the circumstances, this failure to produce the witnesses for the purposes of confrontation and cross-examination rendered the hearing unfair and constituted a denial of due process. It is concluded that the evidence presented was not probative or competent and that the charge contained in the warrant of arrest has not been sustained. Accordingly, the proceedings should be terminated.
Order: It is ordered that the proceedings be and the same are hereby terminated.