Client Alert: Disclosure of Plaintiff’s Status as Undocumented Alien to Prospective Jury Panel Grounds for Mistrial

by Haight Brown & Bonesteel LLP

In Velasquez v. Centrome, Inc. (No. B247080, filed 1/30/2015) the Court of Appeal, Second District, held that a trial judge’s disclosure to the panel of prospective jurors of plaintiff’s status as an undocumented alien was prejudicial and grounds for a new trial.

Plaintiff, Wilfredo Velasquez, brought suit against defendant, Centrome, Inc., alleging personal injuries related to on-the-job exposure to diacetyl, which was purportedly distributed by Centrome.

Prior to trial, numerous motions in limine were filed with the trial court including a motion brought by Plaintiff to preclude Centrome from referring to or making any comments about Mr. Velasquez’s citizenship or immigration status. Plaintiff contended the information was not relevant (as no loss of earnings claim was asserted), and was substantially more prejudicial than probative. Defendant opposed the Motion arguing the information was relevant for the limited purpose of allowing expert testimony about Mr. Velasquez’s inability as an undocumented alien to participate in a lung transplant he claimed was needed. The Court deferred ruling on the motion.

The matter proceeded to a jury trial. After the prospective juror panel was sworn in, the trial judge ordered (outside the presence of the jury) that no reference be made to Mr. Velasquez’s immigration status. The Court indicated its ruling would be reconsidered if the Court decided to admit testimony regarding Mr. Velasquez’s purported need for a lung transplant, because the judge believed it would then be relevant to the issue of whether Mr. Velasquez could actually obtain a transplant.

Shortly thereafter, the trial judge decided to admit testimony about Mr. Velasquez’s alleged need for a transplant. The judge then advised the entire prospective jury panel that “Mr. Velasquez is not legally in the United States.” The Court admonished the prospective jurors, however, that they could only consider Mr. Velasquez’s immigration status with respect to his eligibility to obtain a lung transplant.

Velasquez moved for a mistrial and the motion was denied. The case was tried and the jury returned a verdict in favor of Centrome. Mr. Velasquez appealed.

The Second District Court of Appeal reversed and remanded the matter for a new trial, holding the trial court erred in instructing the prospective jurors of plaintiff’s immigration status.

First, the Court noted when an undocumented immigrant plaintiff files a personal injury action, and does not claim lost earnings or earning capacity, evidence of his or her immigration status is not relevant. The Court rejected the trial court’s determination that plaintiff’s immigration status was relevant for purposes of determining whether he could obtain a lung transplant. Specifically relying on California Evidence Code section 352, the Court of Appeal held the jury should not have been informed about Mr. Velasquez’s undocumented status because such information was substantially more prejudicial than probative.

The Court of Appeal then concluded the trial court erred in refusing to grant plaintiff’s motion for a mistrial noting an abuse of discretion occurred because the error (revealing Mr. Velasquez’s immigration status) was too serious to be corrected by limiting instructions. The Court remanded the matter for a new trial.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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