OLYMPIA — The Washington Supreme Court has adopted a rule saying a person’s immigration status is “generally inadmissible” in court, a measure designed to help those who might fear bringing a civil suit or testifying in a criminal case because of their immigration status.
The measure, which takes effect next September, is believed to be the first of its kind in the country, The Seattle Times reported Wednesday. Under it, immigration status is inadmissible unless lawyers establish a compelling reason to raise it.
“If you have immigration status evidence, that is such a volatile issue, especially today, that it can overtake people’s views,” said Joe Morrison, an attorney with Columbia Legal Services who helped propose the rule. Then, juries “end up having people make decisions on an emotional reaction instead of what the court has told them the law and facts are.”
The rule tracks a 2010 decision from the justices regarding carpenter Alex Salas, who broke bones when he slipped from a ladder on a construction site about 15 years ago. He sued the scaffolding subcontractor because the ladder did not meet code requirements. The jury found the subcontractor negligent, but declined to award Salas any money after hearing he was in the country illegally.
The court found that unfairly prejudicial and gave him a new trial. The second jury awarded him $2.6 million.
David Martin, a King County deputy prosecuting attorney, said some victims of domestic violence and other crimes are reluctant to testify in criminal cases because a defense attorney could bring up their immigration status in public court.
“People are scared. They’re scared because of what they hear coming out of the federal government,” Martin said, noting that U.S. Immigration and Customs Enforcement agents had been seen at Washington courthouses, including in King County.
“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,” he said.
But defense attorneys expressed concern about the application of the rule in criminal cases. Annie Benson, the senior directing attorney for the Washington Defender Association, noted that courts already have the power to bar irrelevant or prejudicial testimony. To admit evidence of immigration status in criminal cases, defense lawyers will be required under the rule to write a pretrial motion and argue it during a hearing — added work for already overburdened public defenders, she said.
Further, some crime victims are offered U visas, which grant them the ability to stay in the country to help with investigations or prosecutions. Defendants in those cases shouldn’t have to clear a hurdle before raising the fact that the victim is receiving a benefit for the testimony they’re offering, said Vancouver-area defense lawyer Angus Lee, who opposed the rule.
“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,” said Angus Lee, a Vancouver-area defense attorney who opposed the rule. “You’re shifting the burden on the accused.”
The Superior Court Judges Association also opposed the new rule as unnecessary.
But Benton County Prosecutor Andy Miller, a proponent, said he hopes it will provide clarity throughout the state. He recalled a 2010 murder case in which defense attorneys questioned two women who had discovered a stabbing victim about their immigration status during a pretrial interview.
“You could tell on their faces, they were upset,” he said. “Having this rule is going to give prosecutors the ability to advise witnesses you don’t have to answer these questions.”