Alex Salas can give you 2. 6 million reasons why an evidence rule recently adopted in Washington—ER 413—is needed. Mr. Salas was severely injured after he slipped and fell off unsafe scaffolding, resulting in 10
fractured bones and 13 surgeries. His first jury trial ended
with a liability verdict, but no damages awarded. Why? Perhaps because the cross-examination of Mr. Salas opened with
five immigration-status questions that could prejudice a jury.
And indeed, the all-white King County jury found the defendant negligent, but refused to award anything to Mr. Salas and
his family for their considerable losses.
After appealing all the way to the Washington Supreme
Court, Mr. Salas obtained a second trial in which immigration status was kept out of the proceeding. The result was a
$2.6 million verdict for Mr. Salas. Two King County juries,
presented with the
same material facts,
different results simply
by removing the
inflammatory immigration-status evidence.
Supreme Court adopted
ER 413, which strictly limits the use of immigration-status
evidence in judicial proceedings, last year.
1 The rule, which
takes effect Sept. 1, 2018,
2 will make evidence about a person’s
immigration status “generally inadmissible” in both civil and
criminal matters, unless limited exceptions are met.
Providing immigrants with access to our courts and a fair
trial is essential to justice in Washington. ER 413 will protect
both the victim of domestic violence and the wrongfully
harmed civil litigant from having immigration-status evidence overwhelm the merits of their cause. To our knowledge,
this evidence rule is the first of its kind in the nation.
Had ER 413 been in place for Salas, the immigration
evidence could not have been admitted. At most, the issue
could have been raised in a post-trial motion after the verdict
was rendered. But Mr. Salas would have obtained the funds
he needed to pay medical providers and replace lost income
years earlier, and our judicial system could have avoided multiple appeals and trials. Indeed, Mr. Salas’s case, where liability
was reasonably clear, likely would have settled even earlier.
ER 413: CONSISTENT WITH WASHINGTON’S HISTORY OF PROTECT-
ING THE RIGHT TO AN UNBIASED JURY
The goals of ER 413 are to: ( 1) remove irrelevant and highly
inflammatory evidence from trials; ( 2) provide predictability
and uniform procedures throughout the state; ( 3) conserve
judicial resources by removing complex immigration-status
disputes from litigants and judges unfamiliar with immigration law; ( 4) encourage parties to reach the merits of the case;
and ( 5) remove incentives to use racialized evidence at trial in
the hope of obtaining jury nullification.
“The right to trial by jury includes the right to an unbiased
and unprejudiced jury.”
3 Evidentiary rules restricting unduly
prejudicial evidence play an integral role in preventing bias
and prejudice. For instance, the Washington Supreme Court
long ago prohibited discussion of insurance coverage at trial
because of its prejudi-
cial nature and pro-
pensity to “confuse or
inflame the minds of the
4 And the federal
rule (FRE 411) was
adopted “to ensure that
juries base their verdicts
upon legitimate grounds and not upon the improper notion
that a judgment adverse to the defendant will be passed along
to a ‘deep pocket’ insurance company.”
5 In 1979, Washington
adopted an identical version of FRE 411.6
Similarly, the court and legislature in Washington have
limited evidence of a victim’s past sexual behavior or sexual
predisposition in civil and criminal cases. For over 25 years,
ER 412 and RCW 9A. 44.020 have regulated admissibility of a
victim’s sexual behavior through a formal pretrial procedure.
The procedural requirements promote appropriate handling of
sensitive evidence and significant conflicting interests during
the pretrial and trial processes, balancing a defendant’s constitutional right to confront and cross-examine witnesses against
the state’s interest in encouraging rape victims to testify.
In a fashion similar to ER 411 and ER 412, ER 413 will
protect Washington’s immigrants, ensuring them access to
justice and freedom from unduly prejudicial evidence that
may inflame racial, ethnic, or anti-immigrant prejudices. As
the Washington Supreme Court recognized in Mr. Salas’s
By David Martin, Ken Masters, and Joe Morrison
EVIDENCE RULE 413
Two King County juries reached markedly
different results by removing inflammatory
Unpacking Washington’s New
Procedural Protections for Immigrants