Is a Person’s Immigration Status Admissible as Evidence in Washington?

Not anymore, thanks to Evidence Rule 413 adopted by the Washington Supreme Court that took effect on September 1, 2018. The new rule limits when and how a person’s immigration status can be used as evidence.

According to the proposal for the rule, there were several purposes for limiting the admissibility of a person’s immigration status. Immigrants make up a larger share of the population than they have in the past, and providing them with access to the courts and a fair trial is essential for the justice system. Especially in criminal cases, immigrants who are victims or witnesses may not want to report crimes if their immigration status could easily be brought up in court proceedings. The rule was also meant to provide clear guidance to trial courts, in the wake of prior Washington Supreme Court decisions that suggested that evidence of immigration status could be deemed prejudicial, and thus possibly inadmissible.

The rule is different for criminal cases compared to civil cases.

In criminal cases a party’s or a witness’ immigration status is not admissible as evidence unless the person’s status is an element of the crime charged or a defense, or to show bias or prejudice of a witness for impeachment purposes. A strict process must be followed if a party wants to use immigration status evidence to show bias or prejudice:

1.  A written pretrial motion must be made supported by the proposed evidence and offer of proof of the relevancy of the evidence.
2. If the offer of proof is sufficient the court must hold a hearing outside the presence of the jury.
3. Then the judge may admit the evidence if the evidence is reliable, relevant, and its relevance outweighs the prejudicial nature of the evidence.

In civil cases the rule is more strict—evidence of a party’s or a witness’s immigration status is not admissible. There are only several, limited exceptions. Immigration status can be admissible if it is an essential fact to prove an element of a party’s cause of action. Evidence of immigration status may also be submitted in a post-trial motion (1) where a party who is subject to a final order of removal was awarded damages for future lost earnings or (2) where a party was awarded reinstatement to employment. If a party is subject to removal, the defendant may submit it after the trial when requesting that an award of future lost earnings be reduced or eliminated. And in cases ordering reinstatement of employment, immigration status can be submitted after trial to prevent conflicting with federal law prohibiting the employment of undocumented persons.

Civil cases also have their own procedure if immigration status is to be used as evidence:

1. The judge must conduct an in-camera review of the evidence outside the presence of the jury.
2. The motion and related papers can be sealed.
3. If the judge determines the evidence may be used, the judge has to make findings of fact and conclusions of law regarding the permitted use of that evidence.

Although parts of the rule were controversial before they were adopted (comments submitted to the Washington Supreme Court when it was considering the rule can be found here), the new rule does provide clearer guidance for when immigration status is admissible.