Friday, November 17, 2017
Washington Becomes 1st State in Country to Create Rule Deeming Immigration Status Evidence Inadmissible
Back in 2009/2010, I did a series of posts about whether lawyers and/or judges should be able to question witnesses about their immigration status. After doing a number of these posts, I wrote an essay for the Northwestern University Law Review Online: "Crossing Over: Why Attorneys (and Judges) Should Not Be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes." Subsequently, the Court of Appeal of California cited the article in finding that a trial court properly precluded defense counsel from interrogating a prosecution witness about his immigration status. But, as far as I can tell, no jurisdiction ever created a categorical rule precluding such interrogation...until now.
In Washington, "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.
Last Wednesday, the state Supreme Court took a unique step that proponents believe would have prevented Salas’ difficulties receiving a fair trial.
The court approved a rule 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 believed to be the first state in the nation to approve such a rule.
That rule, Washington Rule of Evidence 413, reads as follows: