Trials & Travel Ban Tribulations

The Travel Bans were among the most shocking actions of the first Trump administration. While not surprising, especially given President Trump’s 2016 campaign rhetoric, the Travel Bans were de cried for their inherent racism, as well as for their gender, religious, and national origin discrimination. Regardless of these issues, the Supreme Court deemed President Trump’s third Travel Ban constitutional, fating countless Americans and noncitizens to a cruel and uncertain immigration policy. President Trump’s reelection in 2024 reignited these fears, and in his first year back as President, he reissued his fourth and current Travel Ban.&nbsp; <div> <br> </div> <div> The Travel Bans involve, and even exacerbate, the criminal jury right concerns that arose during the coronavirus (“COVID”) pan demic, including the rights to confrontation, presence, a speedy trial, and assistance of counsel/effective assistance of counsel. Indeed, when a party is forced by the Travel Bans to virtually testify from a country like Iran, for example, these Sixth Amendment rights are likely to be impacted.&nbsp; </div> <div> <br> </div> <div> One perhaps unique aspect of the Travel Bans is their ability to infringe on the testimonial oath. American courts require witnesses to swear or affirm, under the penalty of perjury, that their testimony will be truthful prior to testifying. However, such oath or affirmation is meaningless when the witness is testifying virtually from a country like Iran. Specifically, Iran has neither diplomatic relations with the United States nor an extradition agreement with it. Accordingly, wit nesses testifying virtually from Iran who violate their oath or&nbsp;affirmation cannot be punished for perjury, rendering the testimonial oath meaningless.&nbsp; </div> <div> <br> </div> <div> Through two hypothetical situations involving witnesses forced to testify virtually from Iran by the Travel Bans, this Article discusses how the Travel Bans, like COVID, implicate criminal jury rights. It argues that these virtual trials would largely comply with the accused’s Sixth Amendment rights. However, the Article ultimately concludes that, when witnesses are forced by the Travel Bans to testify virtually in a country like Iran, it is impossible to comply with the testimonial oath requirement. Because of this conclusion, the Article asserts that such criminal trials must be dismissed, even though it will set guilty defendants free, deprive victims of the justice they deserve, and prove to society the unintended consequences of a cruel policy. However, this conclusion helps ensure that our criminal justice system will continue to value robust criminal jury rights and limit changes that will erode these protections. &nbsp; </div>