By Andrew VanEgmond
Associate Editor, Vol. 21
I. Deportation of Witnesses with Exculpatory Evidence: The Circuit Split
The Circuit split analyzed in this Comment turns on whether or not to adopt a per se rule regarding government bad faith during a determination of whether the government’s deportation of an alien witness reaches the level of a Constitutional violation. This determination is made using what the Ninth Circuit describes as a “two-part test.” The first step requires the defendant to prove that the government deported the alien witness in bad faith because it either was aware that the alien witness had such exculpatory evidence or had not made a “good-faith determination” that the alien witness lacked such evidence. The per se rule discussed in this Comment applies to this first step. This rule, adopted by the Ninth Circuit in 2012 in Leal-Del Carmen, states that “if the government interviews the witness or has other information suggesting that he could offer exculpatory evidence, the government may not deport him without first giving defense counsel a chance to interview him.” Under this rule, courts will presume that the government has acted in bad faith if the defendant is able to prove that the government was aware of information suggesting that the deported witness might provide exculpatory evidence.
Since 2012, the Ninth Circuit has directly applied this rule two more times. It has also been referenced in two other cases within the Ninth Circuit, and cited as a Ninth Circuit rule in three cases outside of the Ninth Circuit. However, the Tenth Circuit, in Gonzalez-Perez, facing an argument from a defendant asking the Tenth Circuit to adopt the per se rule from Leal-Del Carmen, “decline[d] to follow” the Ninth Circuit. Given this split, the central question of this Comment is whether other Circuits should follow the Ninth Circuit and adopt a per se rule that, once the government is aware of the possibility that an alien witness might possess exculpatory evidence, that witness may not be deported, or follow the Tenth Circuit and decline to do adopt such a rule.
The Ninth Circuit’s rationale for adopting this per se rule of governmental bad faith in certain circumstances was three-pronged. First, it explained that this rule “will not interfere with the execution of the nation’s immigration laws,” because the government can freely “deport witnesses it has no reason to believe possess exculpatory evidence,” and, therefore, “[a]t most, the government will be required to keep a small number of aliens a few extra days or weeks.” Second, it described the government’s general “duty of evenhandedness and fair play in criminal matters,” suggesting that this rule helps to reinforce that duty. Finally, it reasoned that the government should not be able to use its “unique” power to deport witnesses in order “to give itself an unfair advantage” at trial.
The Tenth Circuit, however, did not agree, concluding that “[a] per se rule requiring the government to always detain alien witnesses with potentially exculpatory information unduly interferes with the immigration laws enacted and to be executed by the political branches of our government.” It also explained that “a per se rule essentially assumes bad faith on the part of the government,” and bad faith must, instead, be affirmatively proven.
Since Gonzalez-Perez was not appealed, this Circuit split remains unresolved for the near future. Furthermore, the Tenth Circuit’s disagreement has not, as of yet, garnered any academic or judicial attention. Even in the time since Del-Carmen established this rule in 2012, few academic articles touching on deportation of witnesses with exculpatory evidence have evaluated the per se rule discussed in this Comment. Thus, a close analysis of this relatively new rule is warranted.
The decision of whether or not to adopt this per se rule is particularly important given the challenges faced by criminal defendants in this context. First of all, a rule protecting defendants’ due process right to access witnesses with possibly exculpatory evidence has been described as a “conditional” rule because “there is often no other option than to wait until after trial to decide if a prosecutor has violated the rule.” Since the determination of whether or not a government actor has violated such a rule cannot be made at the time of the possible violation, these conditional rules create significant hurdles for defendants. These challenges include “fail[ing] to guide the behavior of the government actors whose power the Constitution limits, stand[ing] as barriers to institutional efforts at ex ante prevention,” and “mislead[ing] the public about the scope of their rights.” Furthermore, any test that requires a defendant to prove prosecutorial bad faith “imposes an almost insurmountable burden upon the accused” because courts exhibit confusion about how to measure bad faith. Finally, the defendant in a criminal case involving alien witnesses is likely to not be a native English speaker, adding another level of difficulty for the defense team regardless of whether they are communicating with the defendant in his native language. The confluence of these challenges raises the question of whether the Ninth Circuit’s per se rule might help rebalance the scales of justice against the government’s power to deport alien witnesses at will.
II. The Debate Over This Per Se Rule Is a Legitimate Circuit Split
Given the recent development of this per se rule in the Ninth Circuit, the threshold issue for this Comment is whether a Circuit split actually exists. This question arises because some subsequent decisions within the Ninth Circuit that cite Leal-Del Carmen arguably do not view it as having established a new rule. If this were true, the overall test of when the deportation of an alien witness reaches the level of a Constitutional violation would be the same in the Ninth Circuit as in other Circuits, making a Circuit split logically impossible. This view is further supported by the way a Michigan state court cited Leal-Del Carmen as part of its general summary of federal law in this area, making it seem like Leal-Del Carmen expresses the generally accepted standard. However, the way that Michigan court phrases the rule does not encompass the additional protection of the per se rule that has developed in Ninth Circuit law after Leal-Del Carmen. Furthermore, it is possible that the Michigan court specifically chose to cite to the Ninth Circuit in its summary of federal law because the Ninth Circuit has done more, as compared to other Circuits, to refine the test for bad faith in the deportation of a witness. Therefore, Leal-Del Carmen’s test is not necessarily representative of the law in all Circuits, leaving open the possibility of a Circuit split.
Furthermore, this per se rule, rejected by the Tenth Circuit in Gonzalez-Perez, is now settled law in the Ninth Circuit. The Ninth Circuit has applied this rule to subsequent cases, even when the result has come out the other way. Furthermore, other courts around the country have cited this per se rule as a particularity of Ninth Circuit law that differentiates it from other Circuits. Therefore, since this per se rule is both settled in and unique to the Ninth Circuit, the Tenth Circuit’s decision to not follow the rule is and should be viewed as a Circuit split that other Circuits may end up being asked to address.
III. The Ninth Circuit’s Rule Overcomes Procedural Disadvantages for Defendants
Other Circuits should adopt the Ninth Circuit’s test for bad faith in the deportation of alien witnesses because it helps overcome significant procedural disadvantages for defendants. The Eastern District of Virginia has already moved towards extending that rule into another Circuit, concluding that the Fourth Circuit would be more likely to adopt a defendant-friendly “scope” of the bad faith test than some other Circuits. After quoting the per se rule from Leal-Del Carmen as part of what that court predicted the standard to be in the Fourth Circuit, it held that the government’s deportation of an alien witness in a murder case was unconstitutional because the government knew that the witness might have possibly exculpatory information about the defendant’s gang’s leadership structure. That court’s ready adoption of the Ninth Circuit’s per se rule indicates that courts in other Circuits may be inclined to follow the Ninth Circuit when given the opportunity.
Furthermore, adopting the Ninth Circuit’s per se rule would be wise because the existence of a bad faith requirement in this area has been criticized as unfair to defendants. In 1988, the Supreme Court established the requirement that a criminal defendant alleging that the government failed to preserve possibly exculpatory evidence must prove bad faith on the part of the government. However, this bad faith requirement has been criticized for creating a “blurry” line, leading to disagreement between courts on “significant aspects” of the requirement. Some examples of those disagreements include “the definition of bad faith, . . . whether the lost evidence must be potentially exculpatory or possess apparent exculpatory value, and the remedy for a due process violation.” Regardless of these inconsistencies between courts, “[t]he one constant, however, has been that bad faith is almost impossible to prove.” Therefore, many states have flatly rejected the Youngblood bad faith requirement as part of state constitutional law. Furthermore, the Supreme Court has recognized in other contexts that a key disadvantage of bad faith standards is their being so “difficult” to prove.
This per se rule provides one way to mitigate the nearly impossible challenge of proving government bad faith by balancing out the unique power of the government to put witnesses “outside the reach of defense counsel” via deportation. Justice Blackmun’s dissent in Youngblood predicted this risk that defendants might face an “inherent difficulty . . . in obtaining evidence to show a lack of good faith.” In the context of deporting alien witnesses, this risk is particularly large because the possibly exculpatory evidence, the witnesses’ testimony, is within “the peculiar control” of the government as an incident of its power to enforce immigration laws. Furthermore, any government official who would be “unprincipled enough to destroy evidence,” would also be “unlikely to chronicle his actions,” leaving the defendant with little opportunity to prove bad faith. For example, in Rivera-Paredes, when government agents, prior to deporting three alien witnesses that the defendant argued would provide exculpatory testimony, interviewed those witnesses, the interviews were not recorded and “all but one of the agents stated that they did not take notes, did not recall whether they took notes, or could not find any notes.” This decision, completely within the control of the agents, left the defendant without any evidence in the record to support his later due process claim.
Furthermore, in Gonzalez-Perez, a government agent allowed an alien witness to voluntarily leave the United States before ever speaking to defense counsel. This decision was based purely on the agent’s own determination that the witness was lying. The Tenth Circuit then acknowledged that this credibility determination would have been more appropriately made by a jury yet still concluded that there was no Constitutional violation because the defendant had no further evidence of bad faith. If the Tenth Circuit had instead adopted the per se rule from Leal-Del Carmen, the defendant would have been spared from the impossible expectation of finding evidence that the agent had intentionally allowed the witness to leave “in order for the government to gain a tactical advantage at trial.” Instead, any such evidence was left in the hands of the government and the defendant was unable to challenge the deportation.
Finally, adopting this per se rule will not unnecessarily burden the government’s deportation power. As the court reasoned in Leal-Del Carmen, “[t]he government remains free to deport witnesses it has no reason to believe possess exculpatory evidence,” and “[a]t most, the government will be required to keep a small number of aliens a few extra days or weeks.” On this point, the Tenth Circuit’s bare allegation that this rule “unduly interferes” with the execution of immigration laws is more general rhetoric than substantive argument. Deferring a few deportations for a few days in the interest of justice is not an undue interference.
Thus, any other Circuit, given the opportunity, should adopt the Ninth Circuit’s per se rule that, if the government knows that an alien witness may offer exculpatory testimony, the government has acted in bad faith if it then deports that witness before defense counsel can interview her. With defendants already facing a monumental challenge to prove bad faith, this per se rule provides additional protection for defendants’ due process right to access exculpatory evidence without unnecessarily burdening the government’s prosecutorial ability or power to enforce immigration laws.
 United States v. Leal-Del Carmen, 697 F.3d 964, 969 (9th Cir. 2012).
 United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73 (1982). See also Leal-Del Carmen, 697 F.3d at 970.
 For the second step, the defendant must prove that the government’s deportation of the witness was prejudicial to his case. Leal-Del Carmen, 697 F.3d at 970 (citing United States v. Dring, 930 F.2d 687, 693 (9th Cir. 1991)). See also Valenzuela-Bernal, 458 U.S. at 873 (holding that the defendant must make at least “a plausible showing that the testimony of the deported witness would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses”).
 Leal-Del Carmen, 697 F.3d at 970.
 Id. at 968-970 (holding that the government had acted in bad faith when the interviewing agent heard an answer that was not supportive of the government’s case from an alien witness, the agent repeated the question, illustrating the importance of the question to the government’s case, and the witness was then deported before the defendant was even arraigned).
 United States v. Zaragoza-Moreira, 780 F.3d 971, 977-78 (9th Cir. 2015); United States v. Rivera-Paredes, No. 14-50044, 2015 U.S. App. LEXIS 10198, at *2 (9th Cir. May 6, 2015).
 United States v. Pedrin, No. 11-10623, 2015 U.S. Dist. LEXIS 14416, at *3-4 (9th Cir. May 13, 2015); United States v. Alvarez-Espinoza, No. CV-12-01083-PHX-DGC (SPL), 2013 U.S. Dist. LEXIS 74596 at *6-7 (D. Ariz. May 24, 2013).
 United States v. Bran, 950 F. Supp. 2d 863, 870-71 (E.D. Va. 2013); State v. Oliveira-Countinho, 865 N.W.2d 740, 768-69 (Neb. 2015); People v. Sullivan, No. 315843, 2014 Mich. App. LEXIS 2062, at *12 (Mich. Ct. App. October 28, 2014).
 United States v. Gonzalez-Perez, 573 Fed. Appx. 771, 777 (10th Cir. 2014).
 Leal-Del Carmen, 697 F.3d at 970.
 Id. at 971.
 Gonzalez-Perez, 573 Fed. Appx. at 777.
 See Discovery and Access to Evidence, 44 Geo. L. J. Annual Review of Crim. Pro. 405, 406 n. 1105; J. Richard Broughton, Capital Prejudice, 43 U. Mem. L. Rev. 135, 146 (2012).
 David Rossman, Conditional Rules in Criminal Procedure: Alice in Wonderland Meets the Constitution, 26 Ga. St. U. L. Rev. 417, 448-49 (2010).
 Id. at 417-18.
 Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. U. L. Rev. 241, 247 (2008) (describing disparities in the ways courts interpret what bad faith means, including “whether the lost evidence must be potentially exculpatory or possess apparent exculpatory value” in order to amount to a due process violation).
 See Scharlette Holdman & Christopher Seeds, Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases: Imagining Mitigation: Cultural Competency in Capital Mitigation, 36 Hofstra L. Rev. 883, 919 (2008) (describing the miscommunication that can occur when defendants and their defense teams do not share the same native language, even when a translator is present or one member of the defense team speaks the defendant’s native language).
 Alvarez-Espinoza, 2013 U.S. Dist. LEXIS 74596 at *7 (concluding that Leal-Del Carmen did “not change in [sic] Ninth Circuit law” for whether a deportation of an alien witness was a Constitutional violation); Pedrin, 2015 U.S. Dist. LEXIS 14416, at *3-4 (describing the test for bad faith from Leal-Del Carmen without mentioning this per se rule).
 Sullivan, 2014 Mich. App. LEXIS 2062, at *12.
 Id. (citing Leal-Del Carmen in support of the less defendant-friendly proposition that the existence of bad faith generally “depends on the police knowledge of the exculpatory value of the evidence when it is lost”).
 Zaragoza-Moreira, 780 F.3d at 977-79 (applying the rule to find that the district court had erred in finding that the government had not acted in bad faith when the defendant had told an investigator of the potentially exculpatory evidence); Rivera-Paredes, 2015 U.S. App. LEXIS 10198, at *2-5 (applying the per se rule and concluding that the “scant record” does not include any indication “that the deported witnesses’ non-identification were of the exculpatory variety”).
 Bran, 950 F. Supp. 2d at 870 (explaining that “the exact nature” of the test for bad faith in the deportation of a witness “remains somewhat unsettled” and that the Ninth Circuit, “in contrast” to other Circuits, only requires defendants to prove that “the government is aware that the witness might be able to produce material evidence) (citing Leal-Del Carmen, 697 F.3d at 970); Oliveira-Countinho, 865 N.W.2d at 768-69 (explaining that “[h]ow a defendant shows bad faith differs slightly between circuits,” partially due to this per se rule imposed by the Ninth Circuit upon the government once it has any “information suggesting [the witness] could offer exculpatory evidence”).
 Bran, 950 F. Supp. 2d at 871.
 Id. at 874.
 See Bay, supra note 18, at 278-96.
 Ariz. v. Youngblood, 488 U.S. 51, 58 (1988) (“We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”).
 Bay, supra note 18, at 289.
 Id. at 279.
 See, e.g., State v. Morales, 657 A.2d 585, 593 (Conn. 1995) (“[T]he sole fact of whether the police or another state official acted in good or bad faith in failing to preserve evidence cannot be determinative of whether the criminal defendant has received due process of law.”); Lolly v. State, 611 A.2d 956, 960 (Del. 1992) (rejecting a bad faith requirement because “it is unlikely that a defendant would ever be able to make the necessary showing to establish the required elements for proving bad faith.”).
 Chambers v. NASCO, Inc., 501 U.S. 32, 47 n.11 (1991) (explaining that Federal Rule of Civil Procedure 11 was amended in 1983 to remove a bad faith standard because courts had been “reluctant” to use Rule 11 to impose attorney’s fees due to the “difficulty” of proving bad faith); Fogerty v. Fantasy, Inc., 510 U.S. 517, 521 n. 6 (1994) (discussing how requiring prevailing defendants, but not prevailing plaintiffs, to prove bad faith in a motion for attorney’s fees makes it “more difficult” for defendants to obtain attorney’s fees).
 Leal-Del Carmen, 697 F.3d at 971.
 488 U.S. at 66 (Blackmun, J., dissenting).
 Bay, supra note 18, at 292.
 2015 U.S. App. LEXIS 10198, at *2
 Id. at *4-5
 Gonzalez-Perez, 573 Fed. Appx. at 776-77.
 Id. at 777.
 Id. (emphasis added).
 Leal-Del Carmen, 697 F.3d at 971.
 Gonzalez-Perez, 573 Fed. Appx. at 777.