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 only U.S citizen in her immediate family, told her tragic story to reporters in the aftermath of the first Trump administration’s Travel Ban. She detailed how it altered her family’s ability to rejoin her in 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 hint 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 shocking, but not surprising. Indeed, President Donald Trump explicitly stated his intent to enact such a ban in his 2016 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 intended by his promise was the ability of the Travel Bans to implicate Sixth Amendment criminal jury rights, especially when they involved virtual testimony. While these were distinct events, a few years after the Travel Bans were found constitutional, American society experienced another incident that similarly and overlappingly implicated criminal jury rights: the coronavirus (“COVID”) pandemic. Together, these events show the expansion and limits of constitutional, virtual trials in our criminal 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 former implicates, and even aggravates, the Sixth Amendment issues that began during the latter. Part II outlines the portions of our Constitution, Federal Rules of Evidence, and Federal Rules of Criminal and Civil Procedure that involve the intersection of criminal jury trial rights and the Travel Bans. It specifically discusses the state of the accused’s rights to confrontation, presence, and to a speedy trial, both in-person and virtually. It also outlines the testimonial oath and its importance to our justice system, especially as it pertains to perjury. Part III poses hypothetical situations involving criminal defendants and witnesses impacted by the travel bans, discusses several aspects of countries impacted by Ban Four, and demonstrates the likely impacts of Ban Four on their criminal jury trial rights. Part IV considers several suggestions for how to address these impacts, including allowing “virtual presence” for defendants at trial, allowing federal prosecutions to survive a defendant’s deportation, updating jury instructions to better advise jurors regarding witness demeanor, and removing the testimonial oath requirement. Ultimately, while the Article recommends modest changes to protect those impacted by the Travel Bans, it strongly opposes any efforts to eliminate the requirement that witnesses must testify under oath and under the penalty of perjury.

[ . . . ]

The Travel Bans implicate, and even aggravate, the criminal jury right concerns that arose during the COVID pandemic. Most notably, they demonstrate how our justice system’s requirement that witnesses be subjected to a testimonial oath, and more specifically a penalty for perjury, wholly bars some of the virtual criminal jury trials that the Travel Bans would otherwise create. This limit is not a bug within our justice system. Rather, it is a feature. Indeed, attorneys, defendants, victims, and society at large should rejoice at the fact that our justice system will only let a witness testify at trial if they can be punished for perjury.

This limit, however, is not without consequences. Guilty defendants will have their cases dismissed. Victims will not get the justice they deserve. Society will see another example of how its government can harm bystanders of an already cruel policy. Despite these consequences, the fact remains that our justice system values criminal jury rights and limits the changes it will endure.

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