If you are placed on trial for a crime in the state of Washington, or if you’re asked to testify at a trial, and you are in the United States without documentation, should a jury know your immigration status? If you or someone you love is in the United States without documentation – particularly in the state of Washington – keep reading, because the Washington State Supreme Court recently issued a ruling that you need to know about and understand.

A new and unique evidence rule in this state will make the details of someone’s immigration status “generally inadmissible” in both civil and criminal court cases, with only several very narrow exceptions. Rule of Evidence 413 was ordered by the Washington State Supreme Court in November 2017 and will take effect in September 2018.

The new Washington evidence rule is the first of its kind in the nation. In 2016, California’s Governor Jerry Brown signed legislation in that state that requires civil courts in California to treat all personal injury plaintiffs the same without any consideration of a plaintiff’s nation of origin or immigration status. Washington, however, is the first state to require criminal as well as civil courts to treat everyone equally and without regard to immigration status.

HOW IS THE NEW EVIDENCE RULE BEING CHARACTERIZED?

Ann Murphy, a professor of law at Gonzaga University in Spokane, told the Seattle Times that Rule 413 is “very, very progressive and somewhat radical in the sense that this is the first of its kind I’ve seen in this country.” The new evidence rule encourages undocumented individuals – who may fear testifying in a criminal trial or filing a lawsuit because of their immigration status – to seek justice without fear of reprisal.

Senior Deputy Prosecutor David Martin, who heads up the King County prosecutor’s domestic violence unit, told the Seattle Times that domestic violence victims and other crime victims will frequently resist testifying in a criminal case because of the fear that their undocumented immigration status could be exposed publicly in a legal setting.

The new rule gained the support of the Northwest Immigrant Rights Project, Legal Voice, and the Washington Association of Prosecuting Attorneys. It was opposed by the Washington Association of Criminal Defense Lawyers and the Washington Defender Association, which issued a statement saying that Rule 413 is “unnecessary, unworkable and would not accomplish proponents’ goals.”

WHY DO SOME BELIEVE RULE 413 IS NEEDED?

Why did the Washington State Supreme Court issue this “progressive” and “radical” evidence rule? The reason begins with a personal injury case that arose from a construction site accident almost sixteen years ago. That’s when Alex Salas, whose visa had expired, slipped from a ladder on a construction site, suffered ten fractures, and sued a subcontractor for negligence because the ladder did not satisfy safety regulations. So far, Salas has endured thirteen surgeries.

Even though a jury decided that the subcontractor, Hi-Tech Erectors, was, in fact, negligent, Salas received no compensation for his injuries. His attorneys felt that information about his immigration status had prejudiced the jury and should not have been allowed. In 2010, the Washington State Supreme Court agreed and ordered a new trial. At that second trial, in 2015, Salas was awarded $2.56 million.

Because of Alex Salas and others like him in comparable circumstances, a group of attorneys and legal scholars has been working on the new evidence rule for several years. “Stop monkeying around and let’s get to the heart of the case, that’s what this rule says,” according to Joe Morrison of Columbia Legal Services. The thinking is that someone’s immigration status has no bearing on the facts of any civil or criminal case that is not directly immigration-related.

WHAT’S MOST IMPORTANT IN A CIVIL OR CRIMINAL TRIAL?

“If you have immigration status evidence, that is such a volatile issue, especially today, that it can overtake people’s views,” Morrison explained to the Seattle Times. Juries, he said, “end up having people make decisions on an emotional reaction instead of what the court has told them the law and facts are.”

However, Sean O’Donnell, a King County Assistant Chief Criminal Judge who is the president of the state’s Superior Court Judges’ Association, urged the Washington State Supreme Court to reject the new evidence rule as superfluous and unnecessary, writing that it “would be redundant of existing evidence rules.”

But advocates of Rule 413 insist that it’s needed specifically to encourage undocumented immigrants to step forward when justice is at stake. Andy Miller, a Benton County prosecutor, told the Seattle Times, “If victims and witnesses to crime believe that they are going to be asked about their immigration status, they will be less likely to report crime, less likely to cooperate and testify at trial. This is especially true in domestic violence and sexual assault cases.”

WHAT SHOULD IMMIGRANTS KNOW CRIME AND DEPORTATION?

Rule 413 is an evidence rule, so it only impacts what happens inside the courtroom during a trial and not what happens subsequently. Immigrants both with and without documentation should understand that in criminal cases, even if a defendant’s immigration status is not revealed to jurors, convictions for particular crimes may still trigger deportation actions.

In fact, criminal convictions are the leading reason why immigrants are deported from this nation. More than half of all immigrants deported from the United States are deported after a criminal conviction. Convictions for gun- and drug-related crimes, domestic violence, crimes of “moral turpitude,” and violent felonies quite frequently lead to deportations.

Thus, any immigrant who is arrested and charged with any crime in or near the greater Seattle area will very much need the advice and representation that an experienced Seattle criminal defense attorney can offer. If you are an immigrant in the United States, a conviction for a crime can take your freedom, devastate your family, and seriously damage your plans and your future.

If you are accused of a crime in the state of Washington, speak to an experienced Seattle criminal defense attorney immediately, and adhere to your attorney’s recommendations. Remember, to be convicted of a crime, the state must prove your guilt beyond a reasonable doubt. That’s not always easy for the state, but if you become a criminal defendant, you must be represented by an experienced defense attorney who will fight aggressively for the justice you need and deserve.