immigration-status evidence of a party
or a witness shall not be admissible,
except where immigration status is
“an essential fact to prove an element
of a party’s cause of action.” The only
exceptions arise when a civil plaintiff is
awarded future lost wages or reinstatement, both of which may be reviewed
only in a post-trial proceeding. In other
words, the jury will make its award
without regard to a person’s immigration status, which should not be
mentioned or discussed with potential
jurors during jury selection, opening
statement, or closing argument.
Section (b)( 1) sets forth two limited
circumstances in which immigration-status evidence may be handled
through a Civil Rule 59(h) motion. The
rule balances concerns about immigration status prejudice against a defendant’s legitimate need — in limited
cases — where reinstatement or future
lost wages are awarded.
Under section (b)( 1)(A), parties may
submit a post-trial motion disclosing
immigration-status evidence where a
prevailing party who received a future
lost-earnings award is subject to a final
order of removal in immigration proceedings; a court may review the proffered
evidence to determine whether to adjust
the future lost-earnings award. Subsection (b)( 1)(B) also permits post-trial
review where the prevailing party seeks
job reinstatement, avoiding a potential
conflict with federal law prohibiting the
employment of undocumented persons.
Section (b)( 2) is procedural. A
party intending to offer such evidence
must file a written motion under seal
pursuant to GR 15. The court must then
hold a hearing in camera. If the court
determines that the evidence may be
used, it shall make findings of fact and
conclusions of law regarding the use of
that evidence. The papers and record of
the hearing must be sealed, unless the
court orders otherwise.
IMPACT ON DISCOVERY
ER 413 will also give judges an explicit
basis for granting protective orders
regarding immigration status. A protec-
tive order could be justified where the
discovery is not “reasonably calculated
to lead to the discovery of admissible
evidence.” CR 26(c).
Immigrants have a basic right to access
our justice system. If tort victims and
workers go uncompensated, the social
safety net will become overtaxed and
dangerous conditions will continue unchecked. Victims of domestic violence
and other crimes also need protection.
ER 413 promotes basic fairness for
immigrants and members of racial
and ethnic minorities. It also gives
attorneys and judges the guidance they
need to handle immigration evidence,
fostering consistency regarding immigration-status evidence. NWL
DAVID MARTIN is the
Chair of the Domestic
Violence Unit at the King
County Prosecuting At-torney's Office in Seattle.
He can be reached at david.martin@
KEN MASTERS has been
litigating civil appeals for
over 25 years. He chairs
the Washington State Bar
JOE MORRISON works
for Columbia Legal
Services in Wenatchee
and represents primarily
agricultural workers in
class actions. He can be reached at
1. The rule was proposed by a coalition of
advocates from Columbia Legal Services,
the Washington Association of Prosecuting
Attorneys, Northwest Immigrant Rights
Project, Legal Voice, and Ken Masters.
2. ER 413 is not to be confused with the court’s
2013 adoption of a formal comment to RPC
4. 4(a) prohibiting attorneys in civil cases
from inquiring into a person’s immigration
status in order to “obstruct that person
from participating in a civil matter.” RPC
4. 4 comment 4; see also The Unethical Use
of Immigration Status in Civil Matters,
NWLawyer, March 2014.
3. Federated Publications, Inc. v. Swedberg, 96
Wn.2d 13, 17, 633 P.2d 74, 76 (1981).
4. Lowset v. Seattle Lumber Co., 38 Wash. 290,
292, 80 P. 431, 432 (1905); Stratton v. C.H.
Nichols Lumber Co., 39 Wash. 323, 331-32
(1905) (raising insurance issues during
voir dire required new trial).
5. Alan Calnan, The Insurance Exclusionary
Rule Revisited: Are Reports of Its Demise
Exaggerated?, 52 Ohio St. L.J. 1177, 1178
6. 5A Wash. Prac., Evidence Law and Practice
§ 411.1 (West 5th ed.).
7. 5A Wash. Prac., Evidence Law and Practice
§ 412.1 (West 6th ed. 2016).
8. Id. at §§ 412.3 & 412.5.
9. Salas v. Hi Tech Erectors, 168 Wn.2d 664,
672, 230 P.3d 583 (2010).
10. See Washington Courts Domestic Violence
Bench Guide for Judicial Officers, Appendix F (2015); and 22 U.S.C.A. § 7101 ( 20).
11. Id., see also Victims of Trafficking and
Violence Protection Act of 2000, Pub.
L. 106–386, sec. 1513(a)( 1)(A) (2000);
Guadalupe T. Vidales, Arrested Justice: The
Multifaceted Plight of Immigrant Latinas
Who Faced Domestic Violence, J. Fam.
Viol. 25, 533 (2010); Angelica S. Reina, et.
al., “He Said They’d Deport Me”: Factors
Influencing Domestic Violence Help-Seek-ing Practices Among Latina Immigrants,
J. Interpersonal Violence 29 ( 4), 593-615
(2014); Sarah M. Wood. VAWA’s Unfinished
Business: The Immigrant Women Who
Fall Through the Cracks, Duke J. Gender
L. & Pol’y, 11, 141-155 (2004). Numerous
case history examples of how abusers use
threats of deportation to silence victims