case, “[i]ssues involving immigration
can inspire passionate responses that
carry a significant danger with the fact
finder’s duty to engage in reasoned
ER 413(a): IMMIGRATION EVIDENCE IN
Immigration-status evidence is of
special concern in the context of
criminal cases involving domestic
violence, sexual assault, and human
trafficking. Immigrant victims and
witnesses, a disproportionate number
of whom are women and children, routinely face interrogation about their
status while they are unfamiliar with
or simply confused about their legal
rights and the legal system.
are particularly vulnerable because of
a variety of factors, including language barriers, separation from their
communities, lack of understanding
of U.S. laws, fear of deportation,
cultural differences, and predatory
11 Fears of being reported
to ICE and possible deportation keep
many immigrant victims from seeking
the services they need.
12 The result is
victims deterred from seeking legal
assistance in criminal matters, or
even basic social services.
Section (a) of ER 413 protects vulnerable victims by ensuring that immigration status is generally inadmissible,
with two exceptions. First, immigration-status evidence may potentially
be admitted if it “is an essential fact to
prove an element of, or defense to, the
criminal offense.” The other potential
exemption is “to show bias or prejudice
of a witness” for impeachment under
ER 607. Unless one of those two limited
exceptions is met, immigration-status
evidence should not be admitted in
Should a party believe that one
of these exceptions applies, the rule
requires that party to file a written
pretrial motion that includes an offer
of proof. ER 413(a)( 1)&( 2). If the trial
court finds that offer “sufficient,” it
shall conduct a hearing outside the
presence of the jury. ER 413(a)( 3).
Finally, a court may admit the evidence
“to show bias or prejudice” only if
the evidence is reliable and relevant,
and its probative value “outweighs
the prejudicial nature of evidence of
immigration status.” ER 413( 4).
Subsection (a)( 5) clarifies that
section (a) shall not be construed to
prohibit cross-examination regarding
immigration status if doing so would
violate a criminal defendant’s con-
stitutional rights. There is a similar
provision in Federal Rule of Evidence
ER 413(b): IMMIGRATION EVIDENCE IN
Immigrants often face unwarranted
inquiry into their status in civil cases
as well as criminal cases. For example,
low-wage immigrant workers must often
confront questions about their immigra-
tion history before they can pursue the
merits of their case. Immigration status
has also been raised in personal injury
cases and family court matters.
litigation practices chill basic access to
justice for these individuals.
Section (b) of ER 413 lays out the
general rule that, in civil proceedings,
(a) Criminal Cases; Evidence Generally Inadmissible. In any criminal
matter, 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 pursuant to ER 607. The following procedure
shall apply prior to any such proposed uses of immigration status evidence to
show bias or prejudice of a witness:
( 1) A written pretrial motion shall be made that includes an offer of proof of
the relevancy of the proposed evidence.
( 2) The written motion shall be accompanied by an affidavit or affidavits in
which the offer of proof shall be stated.
( 3) If the court finds that the offer of proof is sufficient, the court shall order
a hearing outside the presence of the jury.
( 4) The court may admit evidence of immigration status to show bias or
prejudice if it finds that the evidence is reliable and relevant, and that its probative value outweighs the prejudicial nature of evidence of immigration status.
( 5) Nothing in this section shall be construed to exclude evidence that
would result in the violation of a defendant's constitutional rights.
(b) Civil Cases; Evidence Generally Inadmissible. Except as provided in
subsection (b)(l ), 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 a party's cause of action.
( 1) Post trial Proceedings. Evidence of immigration status may be submit-
ted to the court through a post trial motion:
(A) where a party who is subject to a final order of removal in immigration
proceedings was awarded damages for future lost earnings; or
(B) where a party was awarded reinstatement to employment.
( 2) Procedure to review evidence. 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.