Bill to Stop Irrelevant Disclosures of Immigration Status in Open Court Passes Assembly with Bipartisan Support

SB 785 -- authored by Senator Scott Wiener and Assemblymember Lorena Gonzalez Fletcher -- will ensure undocumented immigrants can come forward to testify in court without fear of deportation
April 30, 2018

Sacramento –  Today the California State Assembly passed Senate Bill 785 -- a bill by Senator Scott Wiener (D-San Francisco) and Assemblymember Lorena Gonzalez Fletcher (D-San Diego) to protect immigrants from irrelevant disclosures of their immigration status in open court. SB 785 passed the Assembly with bipartisan support by a vote of 67-1.  It now returns to the Senate for a final vote next week before heading to the Governor for approval.

Senate Bill 785 is sponsored by San Francisco District Attorney George Gascòn and the Coalition for Humane Immigrant Rights and is co-authored by Assemblymember David Chiu (D-San Francisco).

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 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.

SB 785 requires that any discussion or questioning about the immigration status of any witness, victim, or defendant first be deemed by a judge to be relevant and admissible. 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. 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.

“Our courts need to be safe for everyone to come forward and testify, regardless of their immigration status,” said Senator Wiener. “If victims and witnesses to a crime fear their immigration status will be used against them in court, then they may stay home or not report crimes in the first place. That means that perpetrators of crime will remain free, and our communities will be less safe. In this time of heightened fears and threats around immigration, we must do everything we can to ensure that our courthouses remain places where we are focused on delivering justices and keeping our communities safe.” 

“We cannot have a situation in which victims are reluctant to report crimes, testify as witnesses or pursue justice in California courts,” said Assemblymember Lorena Gonzalez Fletcher. “If any of us or our children were victims of a crime, all of us would want any witness to come testify without worrying about whether his or her immigration status would be used in open court against them. That’s what this bill is about.”

SB 785 was passed out of the State Senate last year, and has now moved through the Assembly in the second year of the two year session. Since the bill was amended in the Assembly, it must return to the Senate for a final vote. SB 785 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 also includes an urgency statute, which will make it effective immediately once the Governor signs the legislation.  

“With the climate of fear in the immigrant community, springing inadmissible evidence on the jury about immigration status is an underhanded tactic that dissuades testimony,” said District Attorney George Gascòn. “That's why this measure is so important, it will keep the doors to California's courtrooms open for everyone and ensure the fair administration of justice.  I commend Senator Wiener for working to protect the most vulnerable among us, so they may continue to cooperate with authorities without fear of immigration consequences.”

The Immigrant Defense Project reported that in 2017, the number of arrests or attempted arrests by ICE agents at all courthouses in New York increased by 900%.  Last year, California’s Chief Justice Tani Cantil-Sakauye said in a letter to Attorney General Jeff Sessions and former 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)

This bill supported by the Californians for Safety and Justice, PICO California, California Association of Human Relations Organizations, Immigrant Defenders Law Center, California Partnership to End Domestic Violence, Alameda County District Attorney Nancy O’Malley, San Diego County District Attorney Summer Stephan, San Francisco Public Defender Jeff Adachi, and many more.