California Passes Law to Keep Immigration Evidence Out of Court
By David Jaroslav | May 23, 2018
On May 17, California Governor Jerry Brown (D) signed Senate Bill (SB) 785 into law, imposing sweeping new restrictions on when and how evidence of someone’s immigration status can be admitted into evidence or even mentioned in court. The law requires that before mention of immigration status can be allowed in court, the judge must hold a separate “in camera” hearing, closed to the public, in order to decide if it’s admissible.
California already passed a law in 2016, Assembly Bill (AB) 2159, making any evidence of immigration status inadmissible in civil personal injury and wrongful death suits, as well as not subject to the rules of discovery. The new law doesn’t quite extend that to all other kinds of cases, but it’s a big step in that direction.
An in camera hearing, whether in a courtroom or a judge’s chambers, is not open to the public, and typically allows only the parties, their attorneys, and the judge to be present. The California News Publishers Association opposed the bill on behalf of the media, “because it does not follow well-established Constitutional principles for closing courtrooms.” Indeed, in criminal court, the Sixth Amendment to the U.S. Constitution guarantees the defendant a public trial, and the U.S. Supreme Court has held that the First Amendment also requires open proceedings even when both prosecution and defense would prefer they be closed and off-limits to public scrutiny. While the Supreme Court hasn’t directly ruled on whether the First Amendment also imposes some requirement of public access to civil trials, or to court records, numerous other courts have, including in California.
SB 785’s sponsor, Senator Scott Wiener (D-San Francisco), proudly admitted that “[o]ur goal in pursing this legislation is to ensure that immigrants feel safe going to court to testify as a victim or a witness”: in other words, to further ensure that protecting illegal aliens takes precedence over the parties being able to fairly present all the evidence, and over the public’s right to know what’s going on in court. Perhaps ironically, it was San Francisco’s Public Defender, Jeff Adachi, repeatedly introducing evidence of immigration status in cross-examining crime victims and other prosecution witnesses that appears to have been a significant impetus behind the bill. California’s state constitution also has a so-called “Truth-in-Evidence” provision (Article I, Section 28(f)(2)), which requires a two-thirds supermajority vote of the legislature to pass anything that would exclude relevant evidence from a criminal proceeding. But unsurprisingly, both chambers of the overwhelmingly Democrat legislature passed the final version of the bill by much more than this requirement: the Assembly by a vote of 69-1 on April 30 and the Senate by 31-6 on May 10.
Finally, SB 785 specifically says it “does not alter a prosecutor’s existing obligation to disclose exculpatory evidence.” Under the U.S. Supreme Court’s pivotal 1963 decision in Brady v. Maryland, a prosecutor must disclose to the defense all evidence that tends to disprove the defendant’s guilt (so-called “Brady evidence”). Yet under this new law, while the defense would still be entitled to have it, they might no longer always be able to use it.
This law harms all sides in all types of litigation, both civil and criminal, as well as keeping vital information hidden from public view that the public has every right to know about. Once again, in California, protecting illegal aliens is the first and maybe even only priority.