by Derek Gilna
The Washington Supreme Court on November 8, 2017, issued a new rule of evidence, making it “generally inadmissible” in both criminal and civil cases to question a party’s immigration status. According to the Court, “evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the criminal offense with which the defendant is charged, or to show bias or prejudice of a witness.”
The Court’s newest order follows in the footsteps of a precedent established in 2010, in which the Court set aside a trial verdict adverse to an individual who had suffered a serious personal injury, but had overstayed his visa. When the case was retried with the immigration information excluded, he was awarded $2.6 million
As noted by the Court, “Whenever a party seeks to use or introduce immigration status evidence, the court shall conduct an in camera review of such evidence. The motion, related papers, and record of such review may be sealed pursuant to GR 15 and shall remain under seal unless the court orders otherwise. If the court determines that the evidence may be used, the court shall make findings of fact and conclusions of law regarding the permitted use of that evidence.”
Normally, witness’ testimony can be impeached or discredited at trial by following a standardized procedure not requiring prior court approval. Thus, many defense attorneys were unhappy with the provision that required court approval before they could ask those questions. “The court may admit evidence of immigration status to show bias or prejudice,” the rule states, “if it finds the evidence is reliable, relevant, and that its probative value outweighs the prejudicial nature of evidence of immigration status.”
Defense attorney Angus Lee said, “If somebody is being granted a benefit in exchange for their testimony Supreme Court case law for due process makes very clear that’s relevant and admissible for impeachment.” However, before defense counsel can raise this issue in an adversary setting, it must file a pretrial motion and obtain an order from the trial judge permitting the admission of such evidence.
Prosecutors were more favorably disposed toward the new rule because it permits them to obtain the testimony of undocumented individuals, who can be rewarded for their cooperating testimony in pending cases by the promise of U-visas (set aside for crime victims and their immediate family members) and eventual legal status.
King County deputy prosecuting attorney David Martin said the new rule is necessary. “People are scared,” he said. “They’re scared because of what they hear coming out of the federal government. Immigration does come up in criminal cases, and sometimes it’s entirely appropriate that the status is examined, but what this rule says is you have to have really good reasons.”
The new rule will go into effect September 1, 2018.
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