Immigration Status: New Maryland Case on Admissibility at Trial

immigration status admissibility trialI was in Florida after Christmas and missed the Maryland Court of Special Appeals’ opinion in Ayala v. Lee, a truck collision case in Anne Arundel County where the plaintiffs were two undocumented aliens who were rear-ended near Annapolis.

After crossing the Bay Bridge, the driver of the plaintiffs’ vehicle stopped the truck and clearly pulled onto the shoulder on Route 50 to fix a problem with the windshield.  They put half the vehicle in the grass, off the shoulder.  The driver also activated the emergency flashers.  In other words, they were doing exactly what they should have done under the circumstances.  After getting the wipers fixed, their truck was rear-ended by another truck.  The driver, who was with the Plaintiffs, was killed and the Plaintiffs themselves were badly injured.

This is a slam dunk on liability, right?  Somehow it goes to the jury on the question of liability.

The defendant driver’s real defense was well characterized by the court as a “I-didn’t-see-it-and-I-don’t-remember” defense.   The Court of Special Appeals found that this is not the justification that creates a jury inference that he was not negligent.

So why did the jury find for the defendants in this case?   That takes us to the next part of this tale, the immigration status of the clients.  Because, call me cynical, but I somehow doubt these plaintiffs would have lost if they were Glen Burnie or Pasadena natives.

Opening the Door on Their Immigration Status?

The trial judge, Anne Arundel County Circuit Court Judge Paul G. Goetzke, found that the Plaintiffs’ immigration status was admissible evidence because there were legitimate questions whether they could earn income in the future.   Judge Goetzke also found that the fact that they misrepresented the immigration status on employment forms – with apparently stolen social security numbers – applied to their credibility.

The intermediate appellate court complained about the prejudice of exposing a party’s immigration status.  The jury’s outcome in this very case underscored this point.   But, in this case, the plaintiffs opened the door to questions about their immigration status when their answers to interrogatories differed from the ones they later submitted as evidence.  What I found interesting is that the court, in a helpful footnote, tells us that the smarter play for plaintiffs’ attorneys would be just to object to the social security number issue.

As a side note, there is a hot issue now about whether a social security number can be produced in discovery.  Some plaintiffs’ lawyers object like crazy, even though they are usually all over the medical records that were produced in the case, anyway.  It is usually one of those fights about absolutely nothing unless the plaintiff has some personal opposition to its production (very few do).   But in this case, it really mattered.

What Is the Take Home Message in This Case?

If you are a plaintiffs’ lawyer, realize that if your client’s immigration status is in question, you must get out in front of it.  The first way to do that is to ask your client the hard questions about it.  This means you have to racially profile your clients a little, doesn’t it?  Well, maybe, but not really.  First, if someone has an accent they may not be from this country.  So that is always a legitimate hint that there could be an immigration issue.  You can also, if you are sensitive to these things like I am, ask every single client to verify their immigration status and tell them why it is so important to be truthful.

That is the second big lesson here.  Clients sometimes lie, often about things that are not relevant to the case until it becomes relevant because they are lying.  This happens all the time.  We need to make this risk crystal clear to our clients before they answer discovery.

The final lesson here is that the appellate courts will give a lot of latitude to the trial courts in making the calls on this.  So you need to come armed with arguments why immigration status should not be admitted and you have to consider whether the juice is worth the squeeze in making a future lost wages claim.   Even though the CSA sided with the trial court here, there is dicta where the court said that the evidence on immigration – the defense lawyer really harped on it with every witness – was overdone.  There is some good language in Judge Zarnoch’s opinion worth using in your motions on this issue.

Key Cases Cited in the Opinion

  • Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) which discusses the Immigration Reform Control Act of 1986
  • Design Kitchen & Baths v. Lagos, 388 Md. 718, 721 (2005), a Maryland Court of Appeals opinion that addressed the eligibility of an illegal alien to receive workers’ compensation benefits
  • Salas v. Hi-Tech Erectors, 230 P.3d 583, 586 (Wash. 2010).  This a Washington state case cited along with state court opinion’s in New Hampshire and New Jersey for the proposition that immigration status may be relevant a trial because if it affects future earnings under the theory that the plaintiff’s salary in the U.S. might differ from what she could earn abroad.   The court in this opinion quickly points out that relevant evidence like this may be excluded if it is unfairly prejudicial.
  • Figeroa v. U.S. I.N.S., 886 F.2d 76, 79 (4th Cir. 1989) (This would be one of the first cases in a plaintiffs’ brief on this issue because it stands for the most fundamental principle: you can’t be called a liar just because you are illegally in this country.


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