GR 9 Cover Sheet

Proposal to Amend ER 413

Concerning Evidence of Immigration Status

Submitted by the Washington State Bar Association

Committee on Court Rules and Procedures

1.      Purpose

ER 413 was adopted in September 2018 for the purpose of making evidence of immigration status inadmissible except for limited circumstances described in the rule. The rule was proposed in a joint submission of Columbia Legal Services, Northwest Immigrant Rights Project, Legal Voice, and the Washington Association of Prosecuting Attorneys. The proposed amendment would make corrections to the language of the current rule to conform it to the intent of the current rule’s original proponents.

The proposed amendment makes two changes: one to subsection (a)(5) and one to subsection (b)(l).

            Subsection (a)(5)

Subsection (a) applies to criminal cases. In the original GR 9 cover sheet, the rule’s proponents wrote (emphasis added to the description of the purpose of subsection (a)(5)):

Subsection (a) provides that immigration status is inadmissible unless (1) status is an essential fact to prove an element of a criminal offense or to defend against the alleged offense or (2) to show bias or prejudice of a witness for impeachment. The subsections of (a) set forth the procedures for using immigration status: (1) a written pretrial motion that includes and offer of proof, (2) an affidavit supporting the offer of proof, (3) a court hearing outside the presence of the jury if the offer of proof is sufficient, (4) admissibility of immigration status to show bias or prejudice if the evidence is reliable and relevant and the probative value of the evidence outweighs the prejudice from immigration status. This procedure is similar to that adopted in RCW 9A.44.020(3).

Subsection (a)(5) clarifies that subsection (a) shall not be construed to prohibit cross-examination regarding immigration status if doing so would violate a criminal defendant’s constitutional rights. There is a similar provision in Fed. R. Evid. 412(b)(1)(C).

As stated, subsection (a)(5) was thus intended to clarify that ER 413 does not exclude evidence in the criminal case if the exclusion of evidence would result in a constitutional violation. But the current language in subsection (a)(5) does not clearly effectuate this intent. Instead, it provides that ER 413 does not exclude “evidence that would result in a violation of a defendant’s constitutional rights, “which can be read as providing that ER 413 does not prohibit evidence when the evidence itself would lead to a constitutional violation, instead of its exclusion. The proposed amendment would revise subsection (a)(5) to confirm to the intent stated by the original rule’s proponents.

            Subsection (b)(1)

Subsection (b) applies to civil cases. The original GR 9 cover sheet describes it as follows (emphasis added to the description of the purpose of subsection (b)(1)):

Subsection (b) provides that in a civil proceeding, immigration status evidence of a party or witness shall not be admissible except where immigration status is an element of a party’s cause of action or where another exception to the general rule applies.

Subsection (b)(1) sets forth two limited circumstances where evidence of immigration status would be handled through a CR 59(h) motion. The proposed rule balances the concerns of prejudice against immigrants highlighted by the Supreme Court with the legitimate need of a defendant, in limited cases, to raise status issues where reinstatement or future lost wages are sought.

As stated, the intent of subsection (b) was to make evidence of immigration status generally inadmissible in civil cases, except for CR 59(h) motion raising specified circumstances having to do with wage loss or employment claims. But current subsection (b)(1) is not cabined to CR 59(h) motions. Instead, it applies to any post-trial motion involving the described circumstance. This substantially expands the scope of the “limited” exception. For example, “post-trial motions” include motions under CR 60, which may be filed a year or more after judgment. In contrast, CR 59(h) motions must be brought within 10 days after entry of judgment. The proposed amendment would restrict the admissibility of immigration status evidence to CR 59(h) motions. The proposed amendment would clarify the exception applies to motions brought under CRLJ 59(h) as well as CR 59(h).

2.      Procedure

Because the proposed amendments are technical fixes to conform ER 413 to its stated purpose, the WSBA Court Rules and Procedures Committee does not believe a further hearing is necessary. However, it will defer to the Supreme Court if a hearing would be useful to clarify the proposal. The Committee does not believe expedited consideration of this proposal is necessary.