Sacramento – Last week, Senator Scott Wiener (D-San Francisco) and Assemblymember Lorena Gonzalez Fletcher (D-San Diego) announced a bill to protect immigrants from irrelevant disclosures of their immigration status in open court. SB 785 requires that any questions about the immigration status of any witness, victim, or defendant first be deemed by a judge to be relevant to the subject of the litigation before. This preliminary judicial determination will prevent disclosure of immigration status, which can deter and chill witnesses from coming forward to testify in both criminal and civil cases.
“People should not fear that stepping onto the witness stand could be a first step towards deportation,” said Senator Wiener. “The focus of our justice system should be discovering the truth, not scaring potential witnesses by disclosing their immigration status when it is unrelated to the case. Immigration status, when unrelated to the facts of the case, should be left outside the courtroom doors.”
“We can and should protect all California residents from inadvertent exposure when they are testifying in a courtroom. No one should have to decide between being a witness and being deported,” said Assemblywoman Lorena Gonzalez Fletcher.
SB 785 bars any reference to immigration status in court, unless it is first determined to be admissible. To establish admissibility, an attorney must persuade a judge in a private, in camera hearing before raising the issue in open court. The judge will then determine whether to allow the issue to be raised.
This bill is sponsored by San Francisco District Attorney George Gascon.
“Unreported crimes and criminals pose a threat that extends far beyond immigrant communities,” said San Francisco District Attorney George Gascón. “If an undocumented victim or witness fears that their immigration status is going to be on trial they are far less likely to come forward and hold a dangerous person accountable. The chilling effect this has on participation undermines the fair administration of justice.”
Recently, California’s Chief Justice Tani Cantil-Sakauye said in a letter to Attorney General Jeff Sessions and Secretary of Homeland Security John Kelly, “Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety. Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws.” (FULL LETTER)
However, when individuals come forward to participate in court cases as victims or witnesses, some attorneys are raising their immigration status, even when that status is not relevant to the facts of the case. This creates as a chilling effect, which can prevent victims and witnesses from coming forward, as Immigration and Customs Enforcement officials can use these proceedings to identify and locate individuals targeted for deportation. Recent news accounts in California and New York have reported that ICE agents have been showing up in Courts, monitoring trials, and making arrests.
This act amends a portion of the Evidence Code that was set by the voters in 1982, so to amend it requires a 2/3 vote by the legislature. SB 785 will also include an urgency statute, which will make it effective immediately upon passage.