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.
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:
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:
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.
Disclaimer: This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.
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