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SB-785 Evidence: immigration status.(2017-2018)

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Date Published: 03/12/2018 09:00 PM
SB785:v94#DOCUMENT

Amended  IN  Assembly  March 12, 2018
Amended  IN  Senate  August 22, 2017
Amended  IN  Senate  July 10, 2017
Amended  IN  Senate  May 23, 2017
Amended  IN  Senate  May 04, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 785


Introduced by Senator Wiener
(Principal coauthor: Assembly Member Gonzalez Fletcher)
(Coauthor: Assembly Member Chiu)

February 17, 2017


An act to add and repeal Sections 351.3 and 351.4 of the Evidence Code, relating to evidence, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


SB 785, as amended, Wiener. Evidence: immigration status.
Existing law provides that all relevant evidence is admissible in an action before the court, including evidence relevant to the credibility of a witness or hearsay declaring, subject to specified exceptions. Existing law also provides that, in civil actions for personal injury or wrongful death, evidence of a person’s immigration status is not admissible and discovery of a person’s immigration status is not permitted.
In civil actions other than those specified above, this bill would prohibit the disclosure of a person’s immigration status in open court by a party unless the that party seeking the disclosure first requests a confidential an in camera hearing and the presiding judge determines that the evidence is relevant and admissible. This bill would apply this prohibition to criminal actions, but would also include a prohibition on the inclusion of a person’s immigration status in public court records. The provisions of the bill would be repealed on January 1, 2022.
The California Constitution provides for the Right to Truth-in-Evidence, which requires a 2/3 vote of the Legislature to exclude any relevant evidence from any criminal proceeding, as specified.
Because this bill may exclude from a criminal action information about a person’s immigration status that would otherwise be admissible, it requires a 2/3 vote of the Legislature.
This bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2/3   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 351.3 is added to the Evidence Code, to read:

351.3.
 (a) (1)In a civil action not governed by Section 351.2, evidence of a person’s immigration status shall not be disclosed in open court by a party except as first authorized by a court’s ruling pursuant to paragraph (2). unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person’s immigration status.

(2)(A)A party seeking the disclosure of a person’s immigration status under this section shall request a confidential in camera hearing at which the judge presiding over the matter shall determine if the evidence is relevant and admissible.

(B)If the judge decides at the hearing described in subparagraph (A) that the evidence is relevant and admissible, the evidence may be disclosed in open court.

(C)If the judge decides at the hearing described in subparagraph (A) that the evidence is irrelevant or inadmissible, the moving party may object to the ruling and may preserve the objection in camera on the record, with the record to be kept confidential pursuant to subdivision (b) of Section 2.585 of the California Rules of Court.

(b) This section does not prohibit an individual do any of the following:
(1) Apply to cases in which a person’s immigration status is necessary to prove an element of a claim or an affirmative defense.
(2) Impact otherwise applicable laws governing discovery in a civil action.
(3) Prohibit a person or his or her attorney from voluntarily revealing his or her immigration status to the court.
(c) This section shall remain in effect only until January 1, 2022, and as of that date is repealed.

SEC. 2.

 Section 351.4 is added to the Evidence Code, to read:

351.4.
 (a) (1)In a criminal action, evidence of a person’s immigration status shall not be disclosed in open court or included in public court records by a party except as first authorized by a court’s ruling pursuant to paragraph (2). unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person’s immigration status.

(2)(A)A party seeking the disclosure of a person’s immigration status under this section shall request a confidential in camera hearing at which the judge presiding over the matter shall determine if the evidence is relevant and admissible.

(B)If the judge decides at the hearing described in subparagraph (A) that the evidence is relevant and admissible, the evidence may be disclosed in open court and in public court records.

(C)If the judge decides at the hearing described in subparagraph (A) that the evidence is irrelevant or inadmissible, the moving party may object to the ruling and may preserve the objection in camera on the record, with the record to be kept confidential pursuant to subdivision (b) of Section 2.585 of the California Rules of Court.

(b) This section does not do any of the following:
(1) Apply to cases in which a person’s immigration status is necessary to prove an element of an offense or an affirmative defense.
(2) Limit discovery in a criminal action.

(3)Affect obligations imposed by Section 1054 of the Penal Code.

(4)Affect the standards of relevance, admissibility, or discovery.

(5)

(3) Prohibit an individual a person or his or her attorney from voluntarily revealing his or her immigration status to the court.
(c) This section shall remain in effect only until January 1, 2022, and as of that date is repealed.

SEC. 3.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to immediately help protect undocumented residents of California and their ability to participate in the California justice system, it is necessary that this act take effect immediately.