In sharp contrast to the rhetoric heard during the recent presidential campaign, the California legislature has struck a blow for fairness in the treatment of undocumented immigrants in the court system. Evidence Code section 351.2, which went into effect on January 1, 2017, provides that “[i]n a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.”
Prior to the enactment of this statute, it was commonplace for defense counsel to inquire into this subject, based on the strained argument that if a plaintiff were undocumented and therefore theoretically subject to deportation, his or her future earnings loss and future medical expenses should be calculated based on the wages and medical costs in the home country to which the plaintiff may or may not be deported at some unknown time in the future. The problem was that it was impossible to separate out the prejudicial impact that evidence of a person’s immigration status would have on a jury from the limited relevance that this evidence might arguably have on damages issues. As a result, in many cases, plaintiff’s lawyers chose not to seek future economic damages rather than risk this prejudicial impact. Section 351.2 eliminates this Hobson’s choice and removes the hot-button issue of immigration from a litigation context where it does not belong.