Trials & Travel Ban Tribulations

Abstract

Excerpted from Brandon M. Draper, Trials & Travel Ban Tribulations, 76 Syracuse Law Review 771 (2026) (207 footnotes) (Full Document).

“My parents came [to the United States] from Syria to build a better life, one free from oppression…. After the Muslim ban became a reality, we felt trapped.” Haya, a Syrian American and the one U.S citizen in her speedy household, advised her tragic story to reporters within the aftermath of the primary Trump administration’s Travel Ban. She detailed the way it altered her household’s capacity to rejoin her within the United States after they return to Syria for her father’s job, stating “We couldn’t return to Syria because of the war. We couldn’t live permanently in Saudi Arabia or UAE because we are not Saudis or Emiratis…. We were stuck.” She continued her tragic story, noting “Out of desperation, my parents decided to reach out to distant family members in Canada and see if we could immigrate there as refugees. That’s where we are today.” Amazingly, she concludes with a touch of optimism: “I dream that one day, the country I was born into will treat me as equal instead of discriminating based on nationality and religion.”

Haya’s story is stunning, however not shocking. Indeed, President Donald Trump explicitly acknowledged his intent to enact such a ban in his 2016 marketing campaign for President, promising “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Not meant by his promise was the power of the Travel Bans to implicate Sixth Amendment prison jury rights, particularly once they concerned digital testimony. While these have been distinct occasions, a number of years after the Travel Bans have been discovered constitutional, American society skilled one other incident that equally and overlappingly implicated prison jury rights: the coronavirus (“COVID”) pandemic. Together, these occasions present the growth and limits of constitutional, digital trials in our prison justice system.

The Article proceeds as follows. Part I discusses the background of President Trump’s Travel Bans and COVID on American society, as the previous implicates, and even aggravates, the Sixth Amendment points that started throughout the latter. Part II outlines the parts of our Constitution, Federal Rules of Evidence, and Federal Rules of Criminal and Civil Procedure that contain the intersection of prison jury trial rights and the Travel Bans. It particularly discusses the state of the accused’s rights to confrontation, presence, and to a speedy trial, each in-person and nearly. It additionally outlines the testimonial oath and its significance to our justice system, particularly because it pertains to perjury. Part III poses hypothetical conditions involving prison defendants and witnesses impacted by the journey bans, discusses a number of elements of nations impacted by Ban Four, and demonstrates the possible impacts of Ban Four on their prison jury trial rights. Part IV considers a number of recommendations for learn how to handle these impacts, together with permitting “virtual presence” for defendants at trial, permitting federal prosecutions to outlive a defendant’s deportation, updating jury directions to higher advise jurors relating to witness demeanor, and eradicating the testimonial oath requirement. Ultimately, whereas the Article recommends modest adjustments to guard these impacted by the Travel Bans, it strongly opposes any efforts to eradicate the requirement that witnesses should testify beneath oath and beneath the penalty of perjury.

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The Travel Bans implicate, and even irritate, the prison jury proper issues that arose throughout the COVID pandemic. Most notably, they reveal how our justice system’s requirement that witnesses be subjected to a testimonial oath, and extra particularly a penalty for perjury, wholly bars a few of the digital prison jury trials that the Travel Bans would in any other case create. This restrict shouldn’t be a bug inside our justice system. Rather, it’s a characteristic. Indeed, attorneys, defendants, victims, and society at massive ought to rejoice at the truth that our justice system will solely let a witness testify at trial if they are often punished for perjury.

This restrict, nonetheless, shouldn’t be with out penalties. Guilty defendants may have their circumstances dismissed. Victims is not going to get the justice they deserve. Society will see one other instance of how its authorities can hurt bystanders of an already merciless coverage. Despite these penalties, the very fact stays that our justice system values prison jury rights and limits the adjustments it would endure.

Brandon M. Draper is an Assistant Professor of Law at Thurgood Marshall School of Law, Texas Southern University, the place he teaches Criminal Law and Evidence.