Washington State’s Supreme Court unanimously issued a new rule of evidence recently that adds a new twist to illegal sanctuary laws. Proposed Rule 413 declares that “evidence of a party’s or witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element” of the crime or civil cause of action.
This rule, which would apply to both criminal and civil cases in all the state’s courts, flips normal rules of evidence on their head. Washington’s current relevance rule, which mirrors most other states’ rules as well as the Federal Rules, treats evidence as relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable”; however, under another rule, relevant evidence may still be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
Rule 413 upends these rules by making immigration status a uniquely disfavored category of evidence: inadmissible unless there is proof at a separate hearing that it is not merely relevant but “essential.” Even if it is proven “essential,” it may be only used for narrow specifically listed purposes, unlike other relevant evidence. In criminal cases, it must be essential to prove an element of the crime, a defense, or the bias or prejudice of a witness. In civil cases, it may only be admitted to show whether or how much to award for lost earnings or whether a plaintiff should be entitled to get a lost job back. On any other issue, it is inadmissible in civil cases no matter how relevant or important it might be.
A trial court’s rulings on relevance typically are treated by appellate courts with great deference and reversed only for “abuse of discretion.” But under this new rule, it’s very unlikely that the immigration status of a criminal defendant, a party in a civil suit, or a witness – any of which could be highly relevant – will be admitted even with special proof that it’s “essential,” because trial courts will be hesitant to admit it for justifiable fear of reversal on appeal. Parties with good arguments for relevance will, it seems, just have to do without in future cases because of that fear.
Rule 413 was prompted by a slip-and-fall lawsuit brought by illegal alien Alex Salas. A jury first found the defendant subcontractor negligent for its ladder not complying with code, but when told that Salas was in the country illegally–which the trial court ruled was relevant to the issue of possible lost future earnings–the jury awarded him no damages.
A lower appellate court affirmed the Salas trial court on appeal, but the Washington Supreme Court reversed the ruling, with only one of its seven justices dissenting. The Supreme Court held that immigration status was indeed relevant to future earnings, but that the risk of undue prejudice from any mention of immigration whatsoever was just so high that it was “abuse of discretion” for the trial court to have allowed the jury to hear about it, despite it being relevant. In the retrial that followed, with the immigration evidence kept from the jury, Salas was awarded $2.56 million.
Yet ironically, the Salas case actually proves that Rule 413 is unnecessary. The trial court was able to make a fair and sensible ruling based on general rules of relevance, without the need for a special rule. No less than King County Judge Sean O’Donnell, president of Washington’s Superior Court Judges’ Association, called Rule 413 “redundant of existing evidence rules.”
The trial court in the Salas case was right the first time. Common sense tells anyone that being in the United States illegally is obviously relevant to whether someone would be able to earn more money here in the future, both since them working here is itself illegal and because they could be deported at any time. Beyond that, evidence of immigration status can be relevant to almost anything, and parties should be allowed to argue for its relevance on a case-by-case basis just like they can for any other evidence. It was bad enough for the Washington Supreme Court to be so wrong when it reversed the Salas trial court, but now it’s even more wrong for them to take that error in one case and turn it into a sweeping and unfair rule of evidence that will affect everyone in the state.