Washington Law Review

Comment

Limitations of Washington Evidence Rule 413

March 17, 2020 | 95 Wash. L. Rev. 429

Abstract: This Comment analyzes Washington State Evidence Rule 413 (ER 413). ER 413 renders evidence of the immigration status of criminal defendants, civil plaintiffs, and witnesses presumptively inadmissible at trial. The Washington State Supreme Court adopted ER 413 in September 2018. It is the first of its kind in the nation. ER 413 provides a clear, uniform rule limiting the use of immigration evidence, an area where prior caselaw had created uncertainty. However, ER 413 falls short of its goal of promoting access to justice and protecting immigrants from jury bias without a supporting system that addresses (1) the dangers of implicit bias for immigrant litigants and (2) an acute issue inhibiting access to justice—immigration arrests outside of local courthouses. This Comment recommends that all Washington state courts adopt implicit bias safeguards that focus on identifying and eradicating implicit biases stemming from immigration status. It further identifies Washington State Attorney General Bob Ferguson’s lawsuit against the federal government, challenging the arrests of noncitizens outside of courthouses by immigration officials, as a necessary prerequisite to the effectiveness of ER 413’s access to justice goals

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