WSR 17-12-077

RULES OF COURT

[June 1, 2017]

Columbia Legal Services, et al., having recommended the suggested new rule of Evidence 413—Immigration Status, and the Court having considered the amendments thereto;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the suggested new rule as shown below is to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites expeditiously.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(C) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than September 15, 2017. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 1st day of June 2017.

(A) Purpose: The proposed rule would adopt a new Rule of Evidence 413 to apply to all civil and criminal cases in Washington.

Washington courts strive to provide equal access to all and to provide litigants with a fair and impartial trial. Federated Publications, Inc. v. Swedberg, 96 Wn. 2d 13, 17, 633 P.2d 74, 76 (1981) ("The right to trial by jury includes the right to an unbiased and unprejudiced jury.") One touchstone of a fair trial is an impartial trier of fact -- a jury capable and willing to decide the case solely on the evidence before it. Jn re Elmore, 162 Wn. 2d 236, 267, 172 P.3d 335, 351 (2007).

Providing immigrants with access to the courts and a fair trial is essential for our justice system. Census data shows the foreign-born share of Washington's population has doubled from 6.6% in 1990, to 13.5% in 2013.1 As of 2011, Washington was home to 943,664 immigrants.2 According to the Governor's office, one in every seven people in the state are immigrants.3

Immigration status evidence is of special concern in the context of criminal cases involving domestic violence, sexual assault, and trafficking in persons. Undocumented immigrant victims and witnesses, a disproportionate number of whom are women and children, are frequently uninformed, unfamiliar with or simply confused about, their legal rights, and the legal system. See Washington Courts Domestic Violence Bench Guide for Judicial Officers, Appendix F (2015); and 22 U.S.C.A. § 7101 (20). They are particularly vulnerable due to a variety of factors including.language barriers, separation from community, lack of understanding of U.S. laws, fear of deportation, cultural differences, and predatory offenders. Id.4 Fr many victims the fear of being reported to immigration and fear of deportation are the most intimidating factor that kept battered immigrants from seeking the services they needed Lifetime Prevalence of Violence Against Latina Immigrants: Legal and Policy Implications, Int'l Review of Victimology 93 (2000) Giselle Hass, Mary Ann Dutton & Leslye Orloff.54 The result is victims deterred from seeking criminal legal assistance, or even basic social services.

Since 2010, our Supreme Court has recognized that consideration of immigration status poses serious obstacles to our courts' ability to deliver a fair trial. "Issues involving immigration can inspire passionate responses that carry a significant danger of interfering with the fact finder's duty to engage in reasoned deliberation." Salas v. Hi-Tech Erectors, 168 Wn. 2d 664, 672, 230 P.3d 583 (2010). Fact-finders may unwittingly make decisions based on prejudice if immigration status evidence is admitted. "Questions regarding a defendant's immigration status appeal to the trier of fact's passion and prejudice." Id. (quoting State v. Avendano-Lopez, 79 Wn. App. 706, 718-19, 904 P.2d 324 (1995). In $alas the court found "the risk of prejudice inherent in admitting immigration status [evidence is] great." Id. at 673.

While Salas provides some direction to trial courts, it does not provide a uniform and comprehensive standard. In light of the "significant danger" that immigration status evidence poses to the fact-finding process, a court rule is needed. See id. at 672. This is true especially in light of a flurry of federal executive orders that have further inflamed the topic of immigration resulting in an increased risk of prejudice caused by the admission of immigration status. Moreover, speculating whether a party might be deported in the future is not productive, especially in light of the complexity of federal immigration law and the lack of expertise of trial court judges in that area of the law.

Evidentiary rules restricting the introduction of prejudicial evidence are common. For over 100 years our Supreme Court has prohibited the discussion of insurance coverage due to its prejudicial nature and propensity to "confuse or inflame the minds of the jurors." Lowset v. Seattle Lumber Co., 38 Wn. 290, 292, 80 P. 431, 432 (1905); Stratton v. CH Nichols Lumber Co., 39 Wn. 323, 331-32 (1905) (raising insurance issues during voir dire required new trial). Based on studies that juries inflated damage awards when they know insurance covers the loss, the federal insurance exclusionary rule, Evidence Rule 411, was established "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." Alan Calnan, The Insurance Exc/i( sionary Rule Revisited: Are Reports of Its Demise Exaggerated?, 52 Ohio St. L.J. 1177, 1178 (1991). In 1979, Washington adopted ER 411, which is identical to the federal rule. SA Wash. Prac., Evidence Law and Practice § 411.1 (5th ed.). Although Rule 411 is directed only to the testimony of witnesses at trial, the cases make it clear that counsel should also avoid references to insurance during opening statements, closing arguments, and the like. Id. at § 411.2, see also Thomas A. Doyle, Competing Concerns in Employment Litigation: How Courts are Managing Discovery of an Employee's Immigration Status, 28 ABA J. Lab. & Emp. L. 405 (2013).

The Court and Legislature have limited evidence of a victim's past sexual behavior or sexual predisposition in civil and criminal cases involving alleged sexual misconduct. For over 25 years, Evidence Rule 412 and RCW 9A.44.020 have regulated admissibility of a victim's sexual behavior through a formal pretrial procedure. SA Wash. Prac., Evidence Law and Practice § 412.l (6th ed.).6 The procedural requirements promote appropriate handling of sensitive evidence in the pretrial and trial process and allow courts to balance important competing considerations of a defendant's constitutional right to confront and cross-examine witnesses against the state's interest in encouraging rape victims to testify. Id. at §§ 412.3 & 412.5.

Immigration evidence, due to its highly prejudicial impact on a fact-finder's deliberative process, should receive treatment similar to ER 411 arid ER 412. A new evidence rule, proposed ER 413, would limit the introduction of immigration evidence (with some exceptions) to ensure equal and impartial access to Washington's court system. The rule would give the judge discretion to review this evidence when it is directly probative to a particular case. Uniform standards set forth through a court rule address the implications of introducing immigration status as evidence, particularly in context of abuse, in order to most effectively administer a just decision. ER 413 provides clear guidance for evidence that is not just an issue of money, embarrassment or shame, but so sensitive that it poses potentially life altering consequences that serve to bar marginalized people from coming to court at all.

The new rule would promote equitable access to justice by removing the potential for racial and ethnic stereotyping that inevitably results from the unnecessary injection of immigration status evidence into the fact-finding process. See TX! Transportation Co. v. Hughes, 306 S.W. 3d 230 (Tex. 2010) ("calling attention to [plaintiff's] illegal immigration status whenever he could appeals to racial and ethnic prejudices [that] cannot be tolerated because they undermine the very basis of our judicial process"). Just as ER 411 was adopted to protect insurance companies from inflated verdicts, and Rape Shield afford protection to victims of sexual assault, proposed ER 413 is designed to protect Washington's immigrants and ensure they can obtain access to the justice system without fear of the legal process being overtaken by racial, ethnic, or anti-immigrant prejudice.

One of the other effects of the proposed rule could be to give judges an explicit basis in the rules of evidence for granting protective orders regarding discovery of immigration status. A protective order could be justified based on an argument that such discovery would not be "reasonably calculated to the discovery of admissible evidence," CR 26(c).

(B) Reyiew by Section

Section (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 section (a) set forth the procedures for using immigration status: (1) a written pretrial motion that includes an 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, 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 section (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 Federal Rule of Evidence 412 (b)(l)(c).

Section (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.

Section (b)(l) sets forth two limited circumstances where evidence of immigration status would be handled through a Rule 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.

Parties would be permitted to submit to the court, through a post-trial motion,.immigration status evidence under subsection (b)(l)(A), if an opposing party prevailed on a future lost earnings claim and that same party was subject to a final order of removal in immigration proceedings, a court may review such immigration status evidence to determine whether an: adjustment in the future lost earnings award is appropriate. This is consistent with the Supreme Court's Salas decision which held that evidence of a party's immigration status alone should not be considered in determining the value of a future lost wages award as the chance of detection and removal from the U.S. is low. Salas, 168 Wn. 2d at 669-70.

Subsection (b)(1)(B) provides for a post-trial review where the party seeks reinstatement to employment. This would permit review of immigration status where a party is awarded reinstatement to employment, in order to avoid potential conflict with federal law prohibiting the employment of undocumented persons.

Section (b)(2) provides the procedural mechanism whereby a party intending to offer such evidence under subsection (a) or (c) must file a written motion under seal pursuant to GR15. The court must then hold an in camera hearing. 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.·

Since 2014, attorneys concerned about the unfair and prejudicial use of evidence pe1iaining to immigration status in civil and criminal proceedings have worked on a proposed rule to address this systemic problem. In October of that year, the proponents submitted a draft proposed ruled and GR9 to the WSBA Court Rules & Procedures Committee for review. Prior to submitting the proposal, Columbia Legal Services ran the proposal by advocates at the Northwest Justice Project, the Northwest Immigrant Rights Project, Legal Voice, and the Asian Pacific Institute on Gender-Based Violence. Additionally, the Washington Association of Prosecuting Attorneys gained the approval of all elected prosecuting attorneys within the state and obtained Board approval to move forward with the proposal. In addition, the proposal was also run by advocates at the National Immigrant Women's Advocacy Project, Aequitas, and the proposal was shared with the American Bar Association Commission on Domestic and Sexual Violence.

The Washington Defender Association was provided with a copy of the proposal as wa the ACLU. WDA was, and continues to be supportive of the civil portion of the proposal, but had significant reservations on the criminal side. The proposal was discussed at least twice on regularly scheduled WSBA Rules Committee meetings. The primary concern raised by the Committee was the need for more specific language as to how and when the proposal would apply in criminal matters. We expect that the Court will hear directly from them. At this point, we do not believe that any further changes would convince the defense bar to support the rule.

With that feedback in mind, the proponents went back to the drawing board. Throughout 2015, the proponents worked to develop language on the criminal portion of the proposal and ultimately decided to pull the proposal to allow stakeholders the necessary time to review and comment on the new language. Multiple stakeholders from the criminal defense bar were actively engaged including the WDA, the ACLU, and the Washington Association of Criminal Defense Lawyers. An in-person meeting was held in the fall of 2015 to discuss the proposal in detail. At that meeting, those from the defense bar stated they would review the proposal and make recommendations to address their concerns. After several months of review, the WDA reported that no amendments would be proposed and the defense bar would continue to support the civil side of the proposal, but not the criminal side. In light of constitutional concerns raised by the defense bar, a specific provision was added to the proposal to ensure 6th Amendment rights were fully protected.

During the summer of 2016, the Access to Justice Board agreed to review the revised proposal. Position statements were received from both the proponents and the opponents from the defense bar. That committee met multiple times to review the proposal including a significant in-person meeting on November 4, 2016 where both the proponents and opponents made presentations. There was no opposition voiced at that meeting to the civil portion of the proposal. On February 9, the ATJ Board ultimately informed the proponents that there was "quick and strong unanimity that the proposal in the context of the civil litigation is appropriate." However, the Board stated it would not "support or oppose the ER 413 proposal in the context of criminal matters."

While the proposal was under review by the ATJ Board, the proponents re-submitted it to the WSBA Rules sub-committee for them to scrub the rule before sending it on to the Washington Supreme Court. That sub-committee reviewed the bill and sent it out for limited stakeholder review to members of the defense bar as well as immigration law practitioners. The subcommittee ultimately decided it could not simply scrub the rule and would need to go through a full vetting review. Given the length of time the proposal had been in the pipeline, the number of stakeholders who had already reviewed proposal, the widespread support for the civil portion of the rule, and the increased importance of need for such a proposal in our State the proponents decided to request immediate review by the Supreme Court.

(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 immigrat1on 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 the evidence is reliable, 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 which would result in the violation of a defendant's constitutional rights.

(b) Civil Cases; Evidence Generally Inadmissible. Except as provided in subsections (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 submitted 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 earnmgs; 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.