Should a Jury Know a Person’s Immigration Status? Washington’s High Court Says No With Groundbreaking Rule

A first-of-its kind evidence rule ordered by the Washington State Supreme Court will make information about immigration status “generally inadmissible” in both criminal and civil cases, with some exceptions.

After carpenter 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.

In 2006, the defense admitted evidence about Salas’ immigration status. Years before his injuries, Salas’ visa had expired.

His lawyers believed that information prejudiced the jury and should not have been included.

The state Supreme Court agreed in 2010, saying the danger of unfair prejudice outweighed the evidence’s value, calling the lower court’s decision to admit the evidence “an abuse of discretion” and giving Salas the new trial that awarded him millions.

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.

“It’s very, very progressive and somewhat radical in the sense that this is the first of its kind I’ve seen in this country,” said Ann Murphy, a Gonzaga University law professor who teaches evidence law. Murphy supported the change.

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