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)

February 17, 2017

An act to amend Section 351.2 of of, and to add Section 351.3 to, 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.
This In civil actions other than those specified above, this bill would prohibit the inclusion of evidence disclosure of a person’s immigration status in a public open court record unless the party seeking its inclusion seeks and obtains a ruling by the presiding judge at an the disclosure first requests a confidential in camera hearing and the presiding judge determines that the evidence is relevant and not otherwise inadmissible because its probative value is outweighed by other considerations. This bill would also apply the same prohibition to criminal actions.
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 an action, including a criminal proceeding, 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 351.2 of the Evidence Code is amended to read:

351.2.
 (a) (1) In a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.
(2) This subdivision does not affect the standards of relevance, admissibility, or discovery prescribed by Section 3339 of the Civil Code, Section 7285 of the Government Code, Section 24000 of the Health and Safety Code, and Section 1171.5 of the Labor Code.
(b) (1) In all actions a civil action not governed by subdivision (a) or any other provision of law, (a), evidence of a person’s immigration status shall not be included in a public court record disclosed in open court unless the party seeking to have the evidence admitted the disclosure first seeks and obtains a ruling by the judge presiding over the case at an requests a confidential in camera hearing that the evidence is and the judge presiding over the matter determines that the evidence is relevant and is not inadmissible pursuant to Section 352.

(2)If a judge determines that evidence of a person’s immigration status is relevant and not inadmissible pursuant to Section 352, he or she shall make an order stating that the evidence may be admitted and for what purpose.

(3)If a judge determines that evidence of a person’s immigration status is not relevant or is inadmissible pursuant to Section 352, he or she shall order that the evidence not be admitted and may seal records of the proceedings regarding the request to admit the evidence pursuant to the California Rules of Court, as applicable. Records that have been sealed shall remain sealed unless a party raises an issue on appeal that relates to the sealed records.

(2) This subdivision does not do either of the following:

(4)This subdivision does not limit discovery into a person’s immigration status.

(A) Limit discovery in a civil action.

(c)

(B) This section does not prohibit Prohibit an individual or his or her attorney from voluntarily revealing his or her immigration status to the court.

SEC. 2.

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

351.3.
 (a) In a criminal action, evidence of a person’s immigration status shall not be disclosed in open court unless the party seeking the disclosure requests a confidential in camera hearing and the judge presiding over the matter determines that the evidence is relevant and is not inadmissible pursuant to Section 352.
(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) Apply to bail hearings in which a person’s immigration status is relevant to determining his or her flight risk.
(3) Limit discovery in a criminal action.
(4) Affect obligations imposed by Section 1054 of the Penal Code.
(5) Affect the standards of relevance, admissibility, or discovery.
(6) Prohibit an individual or his or her attorney from voluntarily revealing his or her immigration status to the court.

SEC. 2.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:
California’s Chief Supreme Court Justice Cantil-Sakauye has said, “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.” By publicly airing the immigration status of individuals in our courthouses even when it is irrelevant to the trier of fact, some officers of the court are chilling participation by undocumented immigrant victims and witnesses by conveying to them that participation may lead to their deportation. Therefore, in 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.