The Defendant was convicted of 3 counts of Rape of a Child 1 and one count of Child Molestation 1. The victim was his step-niece. One year after the victim disclosed her abuse to a therapist – and a mandatory report provided to the police – her mother filed immigration paperwork seeking U.S. legal status, based on being a ‘qualified relative of a victim of a crime’. Subsequently at trial, the Defendant sought to impeach the mother for bias and motive to fabricate due to her seeking legal resident status. The Defendant did not follow ER 413 (below), which was enacted in 2017.
(a) Criminal Cases; Evidence Generally Inadmissible. In any criminal matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the criminal offense with which the defendant is charged, or to show bias or prejudice of a witness pursuant to ER 607. The following procedure shall apply prior to any such proposed uses of immigration status evidence to show bias or prejudice of a witness:
(1) A written pretrial motion shall be made that includes an offer of proof of the relevancy of the proposed evidence.
(2) The written motion shall be accompanied by an affidavit or affidavits in which the offer of proof shall be stated.
(3) If the court finds that the offer of proof is sufficient, the court shall order a hearing outside the presence of the jury.
(4) The court may admit evidence of immigration status to show bias or prejudice if it finds that the evidence is reliable and relevant, and that its probative value outweighs the prejudicial nature of evidence of immigration status.
(5) Nothing in this section shall be construed to exclude evidence if the exclusion of that evidence would violate a defendant’s constitutional rights.
The Trial Court did not allow defense cross examination concerning the mother’s immigration motives. However, the Court did not deny such examination based on the above ER. Instead it based its’ ruling on State v. Orn:
A witness’s bias is ‘always relevant as discrediting the witness and affecting the weight of his testimony’ . . . And ‘the more essential the witness is to the prosecution’s case, the more latitude the defense should be given to explore fundamental elements such as motive, bias, [or] credibility. State v. Orn, 197 Wn 2d 343, 353 (2021) (Emphasis added).
The State argued that the child victim (a U.S. citizen) did not have any knowledge of her mother’s immigration status or that a molest accusation would be a golden ticket to avoid removal. The Trial Court appeared to agree. There was no evidence the victim’s mother knew such an accusation was a potential avenue for permanent residency and her avoiding a chance of deportation. There was no tactical advantage for the victim accusing her step uncle. The victim told her mother about the sexual abuse, but the mother did not tell the police immediately. Instead, she took her daughter to a counselor, who did contact the police. About a year later, the victim’s mother filed an immigration application describing herself as a qualifying relative of a victim. The motive of the mother was not really an issue. The impeachment for bias had “very limited admissibility for probative value in terms of the mother.” The credibility of the victim was essential.
The Court of Appeals previously reviewed a trial court’s limitation on cross examining a witness’s immigration status in two cases: State v. Belada, 13 Wn 2d 185 (2020) and State v. Carballo, 17 Wn. App 2d 337 (2021). In Belada, the Defendant’s wife was a victim, and wanted him deported to avoid having to deal with him. Id at 191. In Carballo, a key witness was possibly threatened by law enforcement regarding deportation if that witness did not cooperate. Belada and Carballo’s convictions were reversed on appeal because each witness’s testimony was essential. But here, the mother’s testimony was not essential.
While Division II did not hold the Trial Court preclusion of Mr. Marquez-Garduza examining the mother was incorrect, it did find that excluding the examination of the mother’s immigration status was harmless since, “the only witness possibly impeachable by the proffered evidence was not a key or essential [State] witness”. Pg 16
Division II considered the mother’s testimony “largely cumulative” (pg. 17) and concluded it was “only marginally relevant”.
…The right to present evidence of a witness’ bias “is essential to the fundamental constitutional right of a criminal defendant to present a complete defense.” Orn, 482 P.3d at 919. However, this right is not without limitation and it is permissible, under the Constitution, for judges to exclude “‘only marginally relevant’” evidence. Jennings, 199 Wn.2d 53, 63 (2022) at 63 (quoting Holmes, 547 U.S. at 326-27).
The Defendant here sought to impeach a collateral, non-essential witness. The mom’s desire not to be deported in order to be with her victimized daughter was not a particularly good strategy, and preclusion of testimony about her mother was clearly supportable.