In December 2017, the Washington State Supreme Court enacted a one-of-a-kind evidentiary rule designed to encourage undocumented immigrants to participate in the justice system without fear of reprisal. Rule of Evidence 413, which makes the details of an individual's immigration status generally inadmissible in both civil and criminal cases, is set to take effect in September 2018. While California adopted a similar rule in 2016, it only applied in the narrow circumstances of a person seeking a personal injury suit. Washington's Rule 413 goes well beyond that, applying to both parties and witnesses in both civil and criminal matters.

It is the intention of the rule to allow witnesses and parties to participate in the court system and testify truthfully without fear of facing deportation or arrest. The rule was supported by both immigrant rights' groups as well as the Washington Association of Prosecuting Attorneys. It is the belief of these groups that undocumented victims or witnesses will be more likely to come forward once Rule 413 is in place.

Support for the new rule isn't unanimous. The Washington Association of Criminal Defense Lawyers and the Washington Defender Association both oppose the measure. Both defense attorney organizations believe that the rule is "unnecessary, unworkable, and would not accomplish proponents' goals." Nevertheless, the rule is set to go into effect in September.

The Origin of Rule 413

The seeds for Rule 413 were planted on a rainy afternoon in 2002, where undocumented immigrant Alex Salas fell from a ladder and hit the ground 30 feet below. His injuries were severe enough to require thirteen surgeries to repair his broken legs, broken arms, and crushed pelvis. Salas also continues to suffer from traumatic brain injury. Mr. Salas ultimately sued the scaffolding company used at his job site for using a ladder that lacked non-slip covering.

During the trial, Salas' immigration status was raised by the defendant. While Mr. Salas did not enter the country illegally, his visa expired in 1994 and he failed to follow up on his application for citizenship. The jury returned a verdict in his favor but awarded him no damages. Salas' legal team believed that the defense counsel repeatedly referring to Mr. Salas as an illegal alien prejudiced the jury, and the State Supreme Court agreed when it overturned the award in 2010. Citing the trial court's abuse of discretion for allowing the repeated mention of immigration status, the Supreme Court sent the case back to the trial level. At the second trial, Salas was awarded $2.56 million dollars.

The Effect of Rule 413 on an Undocumented Person

It's important to understand Rule 413 is a rule of evidence. In other words, it only impacts what evidence is presented to a jury. It will not provide any special protection for an undocumented person outside of the relevant legal proceeding. Rule 413 does alter a person's legal status and cannot prevent a deportation if an individual is later convicted of a crime. If you or a loved one are concerned about the effect a pending criminal charge may affect your immigration status, feel free to contact the Law Offices of Steve Karimi for a free consultation.