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Should Juries Know If a Witness Is Undocumented?

By George Khoury, Esq. | Last updated on

The legal issues surrounding undocumented immigrants are varied and often controversial. When it comes to disclosing a defendant, litigant, or even a witness's immigration status, courts must exercise a careful balancing act between the probative value and the potential for prejudice.

However, a new rule in the state of Washington seeks to lead by example when it comes to handling an individual's undocumented status. It basically makes it so that a person's immigration status will always be considered prejudicial, unless, by way of motion, the court finds it is more probative than prejudicial. While the new rule does not outright prohibit the introduction of evidence regarding an individual's immigration status, it does erect barriers to its introduction.

Preemptively Preventing Bias

When it comes to juries, there's an inherent problem: jurors are people. People, by their very natures, are biased. There is no argument against that.

A person's immigration status, and particularly a person's undocumented immigration status, can trigger certain peoples' biases in a very strong way. The Washington rule seeks to prevent those biases from being triggered by keeping immigration status matters out of the courtroom when it is unrelated to the case at hand.

A problem that many defense attorneys have with the new rule relates to the potential trouble it could cause in showing an undocumented witness's bias or acting out of self-interest.

What's the Trouble?

Sometimes a witness's motivation for testifying is an important part of a case. For example, if a witness for the prosecution is an undocumented immigrant that was promised a U-Visa or some other immigration benefit for testifying, a defense attorney would not be doing their job if they didn't try to get that damning evidence of bias and self-interest in front of a jury.

The new Washington law flips the current status of law. Whereas before, a motion could have been brought to prevent the disclosure of a person's immigration status; now, a motion must be brought in order to disclose it. The defense bar is concerned with public defenders, and other overworked defenders of the criminally charged, not having the bandwidth to make these motion.

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