Now, more than ever, terms like “illegal alien,” “illegal immigrant,” and “undocumented worker” generate fear and controversy in our society.  And in the courtroom setting, the passionate responses inspired by “immigration” carry a significant danger of interfering with the fact finder’s duty to engage in reasoned deliberation.  So significant is this danger that courts across the country (including in California) are increasingly excluding evidence of a litigant’s immigration status—even if arguably relevant to an issue in the case—because it is too prejudicial to be heard by a jury.  In a recently published decision, Velasquez v. Centrome, Inc., the Second District Court of Appeal followed suit, recognizing “the strong danger of prejudice attendant with the disclosure of a party’s status as an undocumented immigrant.”

Velasquez involved a product-related personal injury action in which the plaintiff (Velasquez)—an undocumented immigrant—alleged that his lung disease was caused by workplace exposure to a chemical compound distributed by the defendant (Centrome).  Before trial, Velasquez moved to preclude Centrome from presenting any evidence or making any comment about his citizenship or immigration status.  The trial court denied the motion after a doctor testified at a 402 hearing that Velasquez’s immigration status might be relevant to his future special damages (specifically, his eligibility for a lung transplant).  Based on that ruling, the trial court then informed prospective jurors during jury selection that Velasquez is “not legally in the United States.”  During the course of the trial, however, another 402 hearing was held on a different issue, and the same doctor clarified that Velasquez’s immigration status could not be considered when determining his eligibility for a lung transplant.  Based on this clarification, the trial court reversed its prior ruling and held that no evidence of immigration status could come in.  (At that point in the trial, the only mention of Velasquez’s immigration status that the jury had heard was the trial court’s statements during voir dire.)  The jury ultimately returned a defense verdict and Velasquez appealed, contending that it was error to inform prospective jurors that he is an undocumented immigrant.

The Court of Appeal agreed.  Proceeding from the basic premise that “[n]o evidence is admissible except relevant evidence” (Evid. Code, § 350), the court explained that Velasquez’s immigration status was entirely irrelevant and therefore, inadmissible.  So, concluded the court, the jurors should never have been informed that Velasquez is an undocumented immigrant.  The Court of Appeal recognized that the trial court could not have foreseen that Velasquez’s immigration status would turn out to be entirely irrelevant (given the testimony at the first 402 hearing), but the court explained that even before the clarification at trial, it was an abuse of discretion under Evidence Code section 352 to conclude that evidence of Velasquez’s immigration status was admissible.  The testimony at the first 402 hearing established that such evidence was—at best—only nominally relevant.  By contrast, the potential prejudice in admitting evidence of Velasquez’s immigration status was “very real, and very strong.”  Thus, whether viewed as an issue of total inadmissibility for want of relevance, or as a matter of discretionary exclusion under Evidence Code section 352, the trial court erred when it ruled that Velasquez’s immigration status could be presented to the jurors, and it erred by informing prospective jurors of Velasquez’s immigration status during voir dire.

The Court of Appeal also concluded that the error was prejudicial—meaning it was reasonably probable that Velasquez would have obtained a more favorable verdict absent the error, particularly with respect to the jury’s causation finding (the jury had voted nine to three that Centrome’s acts were not a substantial factor in causing harm to Velasquez).  Thus, Velasquez will now have a second chance to seat a jury whose prejudices have not been unnecessarily excited by a judge’s statements about immigration status during voir dire.

With more and more courts recognizing that the probative value of a litigant’s immigration status (if any) is heavily outweighed by its potential for prejudice, one could reasonably assert that such evidence is simply always inadmissible, even if arguably relevant to an issue in the case (such as the plaintiff’s ability to recover damages for lost earnings or earnings capacity).  As the Velasquez opinion makes clear, the trend in this country is already toward excluding such evidence.  And although no court has created a per se rule of inadmissibility yet, one can’t help but wonder if such a rule isn’t far off.  But even if such a rule is never judicially pronounced, thanks to Velasquez, litigants in California now have some new authority to cite and some new language to quote when moving to exclude evidence of and references to their immigration status at trial.