In a recent string of judicial decisions spanning various jurisdictions across the country, courts have held that evidence of a plaintiff’s status as an undocumented immigrant is unfairly prejudicial and generally irrelevant.
Typically, defense attorneys will attempt to argue that such evidence is relevant and admissible for two purposes. In cases where the plaintiff is making a claim for future loss of earnings, defense attorneys may argue that evidence of illegal immigration status is relevant in that it may have a direct impact on the plaintiff’s ability to earn wages and the amount of wages earned. Secondly, defense attorneys may argue that such evidence is admissible for the purpose of attacking the plaintiff’s credibility.
Regardless of the purpose for which a defense attorney seeks to introduce evidence of immigration status, courts must weigh the probative value of such evidence against the risk of unfair prejudice. In a majority of recent cases, courts have ruled in favor of excluding this evidence after determining that its probative value is slight in comparison to its highly prejudicial nature.
The most recent example is the case of Republic Waste Servs., Ltd. v. Martinez, 335 S.W.3d 401, 409 (Tex. App. 2011) wherein a Texas court of appeals excluded evidence of a decedent’s immigration status, holding that “the probative value of evidence showing only that the plaintiff is an illegal immigrant, who could possibly be deported, is slight because of the highly speculative nature of such evidence.” This case comes on the heels of similar decisions in Texas, Florida, California, Delaware, New York, Wisconsin, Virginia, North Dakota, and Pennsylvania.