EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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:

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H/T Ann Murphy and Pam Loginsky.



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While living in a nanny state where everything seems to be illegal and local courts dont seem to care about fair justice in any case (other than lining their wallets with fine money) can be rough, it’s always nice knowing that we have a strong appellate tradition and an unmatched Supreme Court that has brought legal tradition to a new art form.

Posted by: Kevin Hansen | Nov 20, 2017 3:55:25 PM

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