After carpenter Alex Salas slipped from a ladder on a construction site about 15 years ago, suffering 10 fractures, he sued the site’s scaffolding subcontractor because the ladder did not meet code requirements.
A jury in 2006 decided the company was negligent, but did not award Salas any money. Nearly a decade later, after appeals, a new King County jury awarded Salas $2.6 million in the case.
The two juries heard the same case — with a critical difference. The first jury knew he was in the country illegally; the second did not.
The state Supreme Court agreed in 2010, saying the danger of unfair prejudice outweighed the evidence’s value, calling the lower court’s decision to admit the evidence “an abuse of discretion” and giving Salas the new trial that awarded him millions.
Last week, the Washington Supreme Court took a unique step that proponents believe would have prevented Salas’ difficulties receiving a fair trial. The court approved a new Rule of Evidence that makes evidence about a person’s immigration status “generally inadmissible” in civil and criminal courts statewide unless lawyers establish a compelling reason to raise the issue. The rule will take effect statewide next September. Washington is one of the first states in the nation to approve such a rule. In 2016, the California legislature passed Evidence Code section 351.2, which provides that "In a civil action for personal injury or wrongful death, evidence of a person's immigration status shall not be admitted into evidence, nor shall discovery into a person's immigration status be permitted."
“It’s very, very progressive and somewhat radical in the sense that this is the first of its kind I’ve seen in this country,” said Ann Murphy, a Gonzaga University law professor who teaches evidence law. Murphy supported the change.
Proponents say the rule will remove barriers to justice for people without documentation, who might fear bringing a civil suit or testifying in a criminal case because of their immigration status. It will also protect witnesses or litigants from prejudice by a jury, said Joe Morrison, an attorney with Columbia Legal Services, who helped propose the rule to the state Supreme Court
David Martin, a King County deputy prosecuting attorney, said some victims of domestic violence and other crimes are often reluctant to participate as witnesses in criminal cases because a defense attorney could bring up their immigration status in public court.