So your injured client is an undocumented immigrant. You want to pursue an income loss claim on his behalf but you’re worried that if you do so, his status will undermine or even poison the rest of his claim. A legitimate concern? Not necessarily, thanks to a 7-2 decision last month by our state Supreme Court in Salas v. Hi-Tech Erectors, ___ Wn.2d ___ (2010).

The Salas case arose from a construction site accident.

Alex Salas, who entered this country from Mexico in 1989, worked for Charter Construction, which hired Hi-Tech Erectors to erect scaffolding at a condominium project in north Seattle. On the day in question, Salas had to climb a ladder on the scaffolding to reach some windows. Despite wet conditions, the ladder rungs had no textured surface to prevent slipping, and Salas unfortunately slipped and fell more than 20 feet to the ground, severely injuring himself.

Salas sued Hi-Tech for damages in King County Superior Court, alleging, among other things, that the defendant had negligently furnished a ladder that didn’t meet code requirements. The trial court later agreed, granting partial summary judgment on this issue while reserving the remaining issues (i.e., liability, proximate cause, and damages) for trial.

The undisputed facts were that Salas had legally entered the United States with a visa that expired five years later in 1994, that he had lived and worked in the greater Seattle area since 1990, that he had paid taxes during this time, and that he was married with three children. But for unclear reasons, the fact that Salas was in the United States illegally didn’t come out until shortly before trial at the deposition of his treating psychiatrist.

Prior to trial, the plaintiff moved in limine – unsuccessfully – to exclude evidence of his immigration status. While recognizing some jurors might “really take it out on him,” the trial court nonetheless ruled that Salas’ immigration status was probative of “whether [his] future income would be in [U.S.] dollars or the currency of his home country” – and that evidence of his status would therefore be admissible if he sought lost future income as part of his damages.

Since Salas proceeded to do exactly that, the trial court admitted evidence regarding his undocumented status. A defense verdict followed, as a King County jury found that although Hi-Tech was negligent, its breach of duty didn’t proximately cause Salas’ injuries.

In a published opinion, the Court of Appeals affirmed. Salas v. Hi-Tech Erectors, 143 Wn. App. 373 (2008). On the one hand, Division One agreed that evidence of immigration status should usually be inadmissible, given its potentially prejudicial impact. But no error occurred, said the court, because Salas’ immigration status was “discovered late” and the trial court wasn’t given “sufficient relevant authority” on the issue.

“Did the trial court abuse its discretion by admitting evidence of Salas’ immigration status when Salas sought damages for lost future income?”

In tackling this issue, the high court, in a majority opinion written by Justice Mary Fairhurst, initially discussed the pertinent standard-of-review principles:

• A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.

• A trial court abuses its discretion when its decision is “manifestly unreasonable” – i.e., when it adopts a view that no reasonable person would take.

• A trial court also abuses its discretion when its decision is based on “untenable grounds” – i.e., when it applies the wrong legal standard or relies on unsupported facts.

The justices next stated the applicable evidentiary standards:

• All relevant evidence is admissible unless its admissibility is otherwise limited. (See ER 402.)

• Evidence is relevant if it has “any tendency” to make the existence of a consequential fact more (or less) likely than it would be if the evidence didn’t exist. (See ER 401.)

• Since the threshold to admit relevant evidence is low, even minimally relevant evidence is admissible.

The threshold issue, then, was whether Salas’ immigration status had any relevance at all. As already mentioned, the trial court reasoned that if Salas sought lost future wages, his immigration status was relevant because it called into question whether his lost income would be valued in U.S. or Mexican currency. Implicit in this ruling was the notion that since Salas was in the United States illegally, he would (or could) be deported to his home country where the wages would be significantly lower.

As the majority observed, however, Salas’ immigration status was the “only evidence in the record” suggesting that he might be deported. Instead, said the court, the record revealed the following:

• Salas has lived in the United States since 1989; has lived here without a visa since 1994; and has worked, bought a home and raised his family in the United States.

• There was no evidence of any pending immigration proceeding or deportation order.

• According to Department of Homeland Security estimates, 11.6 million undocumented immigrants were living in the United States in 2008. Combined with the fact that less than one percent of this population was apprehended in 2008, the risk of Salas being deported is “exceptionally low.”

• Even when an undocumented immigrant is apprehended, a deportation order by an immigration judge isn’t a “foregone conclusion.” Thus, immigration status alone isn’t a “reliable indicator” of whether someone will be deported.

But at the end of the day, the majority reluctantly agreed that evidence of Salas’ immigration status still met the test of relevance:

The relevance requirement is not a high hurdle….With regard to Salas’ future earning power, one consequential fact will be the market in which he sells his labor. Salas’ immigration status creates a greater likelihood that his labor market will not be the United States than if Salas legally resided here. Even though his immigration status only increases this risk by a minimal amount, minimal relevancy is all that ER 402 requires. Therefore, we hold that Salas’ immigration status is relevant to the issue of lost future earnings.

The analysis didn’t end here, however, because under ER 403, relevant evidence can still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. A danger of unfair prejudice exists, said the court, when the evidence is “likely to stimulate an emotional response rather than a rational decision.” And it was on this point that Salas ultimately carried the day.

First of all, the majority noted that evidence of immigration status has been found unduly prejudicial by other courts. For example, in a Washington criminal case, State v. Avendano-Lopez, 79 Wn. App. 706 (1995), the Court of Appeals held that a prosecutor’s question on cross-examination – “You are not legal in this country, are you?” – was grossly improper because it was “designed to appeal to the trier of fact’s passion and prejudice.”

Picking up where Avendano-Lopez left off, the Salas court emphasized how immigration nowadays is a “politically sensitive issue”:

Issues involving immigration can inspire passionate responses that carry a significant danger of interfering with the fact finder’s duty to engage in reasoned deliberation. In light of the low probative value of immigration status with regard to lost future earnings, the risk of unfair prejudice brought about by the admission of a plaintiff’s immigration status, by itself, is substantially outweighed by the danger of unfair prejudice.

In siding with Salas, the majority rejected the Court of Appeals’ reasoning that there was no abuse of discretion because the issue of the plaintiff’s immigration status “arose late” and the trial court wasn’t given “sufficient relevant authority” on the issue. This was “unpersuasive,” said the court, because an untenable decision shouldn’t be allowed to stand just because the parties’ briefing was inadequate:

Because we conclude that, with regard to lost future earnings, the probative value of immigration status, by itself, is substantially outweighed by its risk of unfair prejudice, the trial court’s decision to the contrary is based on untenable reasons. Therefore, the trial court’s decision is an abuse of discretion.

Finally, the Salas court likewise snubbed Hi-Tech’s argument that any error in admitting evidence of Salas’ immigration status was harmless. A new trial is required, said the court, “where there is a risk of prejudice and ‘no way to know what value the jury placed upon the improperly admitted evidence’” (quoting Thomas v. French, 99 Wn.2d 95 (1983)). That was the case here, said the court, because the risk of prejudice from evidence of Salas’ immigration status was “great” – and because its effect on the jury was unknown. (As a sidenote, the case was remanded to the Court of Appeals so the issues raised by Hi-Tech’s cross appeal could be resolved before the new trial.)

It is important to keep in mind that Salas v. Hi-Tech Erectors stands for the proposition that evidence of immigration status by itself is inadmissible. In other words, the outcome might well be different if, say, your undocumented client has a pending deportation proceeding. But if the evidence only shows your client has been living in the United States illegally – no more and no less – then an income loss claim can definitely be pursued without fear of reprisal by an irrational or biased jury.