As experienced Spanish Speaking Personal Injury Lawyers we represent a significant number of Spanish Speaking Only clients. In many of our accident 
cases these clients are considered undocumented or “illegal” as some would put it. According to the Center for Immigration Studies about half of the immigrants in the United States are undocumented and of those most of them entered the court legally but their Visa has since expired and they have stayed in the United States. In 2013, the Immigrant Population in the United States was in excess of 41.3 million people and accounted for about 13.1% of the total US Population. With so many immigrants in the United States and a significant percentage of them being undocumented and here to work there has been a significant increase in the number of undocumented immigrants on the road. More immigrants on the road translates to more car accidents involving immigrants (both documented and undocumented). That begs the question, can evidence of a person’s immigration status be introduced in an accident or injury case?
What is Relevancy?
The first question that an experienced personal injury lawyer would ask themselves is: Is it relevant? Relevancy is defined in the Rules of Evidence as evidence that (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. So, what does that mean? The definition casts a wide net and will essentially allow any lawyer to argue that almost everything is relevant. However, Rule of Evidence No. 403 states that if the evidence is relevant, “[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Therein lies the major distinction. Of course, most experienced trial lawyers can make a cohesive argument that something is relevant but the key to also show that the probative value of the evidence exceeds any of those six (6) important dangers that all trial lawyers face when putting evidence before a jury.
Is Undocumented Status Relevant In A Personal Injury Case Generally?
This is a new area of the law and without question an issue that has not been addressed in a number of states (including Indiana). Higher Courts interpret these rules and set precedent as guidance for the lower courts to follow. While Indiana State Courts have not touched on the issue the Federal 7th Circuit addressed the question of the admissibility of a person’s immigration status in Toliver v. Hullick, 470 F. 3d 1204 (U.S. Ct. App. 7th Cir. 2006). Toliver, was a criminal case involving eyewitness testimony of a murder. During the trial, the Defense Attorney attempted to question the eyewitness (Mr. Samir Younes – a native Morrocon) about his immigration status. The defense attorney cleverly argued that Mr. Tounes’ immigration status was relevant because, “as an illegal, he had a motive to cooperate with the police to influence them to not report him to what was then the Immigration and Naturalization Service, where he could face possible removal from the country.” Id. at 1205. The Trial Court disagreed stating that the information regarding immigration status was only marginally relevant in light of the Criminal Defendant’s confession. Mr. Younes’ immigration status was never put before the jury. Many other State Courts have agreed that placing a person’s immigration before a jury in a serious auto accident case is too prejudicial and carries little if no probative value to the facts of the case. On the other hand, there is a split when it comes to the question of a lost wage claim.
Is it Relevant to a Claim for Lost Wages?
Many lawyers and insurance companies involved in catastrophic injury cases which deal with undocumented immigrants have tried to introduce evidence of an accident victim’s immigration status in the context of lost wages. The Supreme Court of the United States (SCOTUS) provided us with some guidance on this topic in the Hoffman Plastic Compounds Inc. v. National Labor Relations Board, 122 S. Ct. 1275, US Supreme Court (2002). In Hoffman, Castro (an undocumented person) was laid off and filed for back pay with the National Labor Relations Board. The Administrative Law Judge hearing the 
case awarded back pay to Castro and Hoffman appealed stating that Castro was not entitled to recover back pay because he was not authorized to work in the United States. The SCOTUS reversed stating a back pay award to an undocumented alien who had never been legally authorized to work in the United States was improper. They went on to say, “awards of back pay to immigrants unauthorized to work “encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.”
Their argument being: If you are not here legally then you cannot legally work and so you can’t get an award of lost wages. Unfortunately, for the insurance companies it is not that simple. As a matter of fact, some State courts (like those in Texas and New York) that have addressed this issue have disagreed with the Hoffman opinion. Those Courts go back to the relevancy analysis and determine that the danger of unfair prejudice to the injured person is too significant compared to the probative value of their immigration status and so it should be let in before a jury. In those states, the Courts have unanimously held that a person’s immigration status is not admissible even though the person is making a claim for lost wages.
