filed

/^WV - 8 2017 /
supreme/o^

THE SUPREME COURT OF WASHINGTON
IN THE MATTER OF THE PROPOSED NEW

ORDER

RULE OF EVIDENCE 413 — IMMIGRATION

NO.25700-A- lzo\

STATUS

Columbia Legal Services, et al., having recommended the adoption of the proposed new
rule of Evidence 413 — Immigration Status, and the Court having considered the new rule and
comments submitted thereto, and having determined that the proposed new rule will aid in the
prompt and orderly administration ofjustice;
Now,therefore, it is hereby
ORDERED:

(a)

That the new rule as attached hereto is adopted.

(b)

That the new rule will be published in the Washington Reports and will become

effective September 1, 2018.

 Page 2
ORDER

IN THE MATTER OF THE PROPOSED NEW RULE OF EVIDENCE 413 —
IMMIGRATION STATUS

DATED at Olympia, Washington this

day of November,2017

 [PROPOSED] NEW EVIDENCE RULE 413. IMMIGRATION STATUS
(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 ofimmigration 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 mav admit evidence ofimmigration status to show bias or
prejudice if it fmds 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 ("byil. evidence ofa 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 mav 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
earnings: 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
I

evidence may be used, the court shall make findings of fact and

conclusions oflaw regarding the permitted use ofthat evidence.