PHILADELPHIA BAR ASSOCIATION RESOLUTION IN SUPPORT OF PROPOSED AMENDMENT OF THE COMMENT TO PA RULE OF EVIDENCE 401

WHEREAS, The Philadelphia Bar Association, the oldest association of lawyers in the United States, is committed to advancing the fair and effective administration of justice.

WHEREAS, the Philadelphia Bar Association has a long history of working toward the elimination of bias and unfair prejudice in our justice system.

WHEREAS, the admissibility of evidence is a key determinant in preventing the entry of prejudicial information at trial.

WHEREAS, in Pennsylvania, evidence may be excluded “if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, wasting time, or needlessly presenting cumulative evidence.” See: Pa.R.E. 403.

WHEREAS, in Pennsylvania, unfair prejudice exists when there is “a tendency to suggest [a] decision on an improper basis or to divert the jury’s attention away from its duty of weighing the evidence impartially.” See: Commonwealth v. Tyson, 119 A. 3d 353, 360 (Pa. Super. 2015), citing Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2005).

WHEREAS, except in rare case-specific circumstances, the immigration status of a party or witness is irrelevant to the establishment of material facts that would lead to a proper determination of the outstanding issues in a case.

WHEREAS, United States Immigration and Customs Enforcement (“ICE”) is effecting arrests in and around courthouses and probation offices in Philadelphia and around the country causing fear among litigants, witnesses, victims, family members.

WHEREAS, advocates in Philadelphia and across the state have seen a decrease in immigrant clients seeking legal assistance in domestic violence cases and other civil cases due to fears of ICE presence in courthouses.

WHEREAS, victim and witness advocate organizations in Philadelphia have had immigrant crime victims and witnesses inform them that they do not wish to appear in court to testify due to fear of ICE action against them.

WHEREAS, parties and witnesses should not be deterred from participating in court proceedings for fear they will be questioned regarding their immigration status by a trier of fact or attorneys.

WHEREAS, the active participation of victims, witnesses, criminal defendants, and other litigants is vital to a healthy and robust justice system.

WHEREAS, the Supreme Court of Pennsylvania Committee on Rules of Evidence has proposed an amendment to the Comment to PA.R.E. 401, adding language addressing the relevance of class as follows: “Generally, evidence of a person’s race, sex, gender identity or expression, religion, national origin, immigration status, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation is irrelevant and inadmissible.” See Pa.R.E. 402 (evidence not relevant is not admissible). Such evidence may also be subject to analysis under Pa.R.E. 403, concerning unfair prejudice.

WHEREAS, the proposed amendment to the Comment to Pa.R.E. 401 provides needed guidance to judges and legal counsel and assurance to litigants and witnesses that immigration status and all categories of class will not be subject to unfair scrutiny and questioning in legal proceedings in this Commonwealth.

WHEREAS, the comments to Pa.R.E. 401 must also clarify that the amendment is not meant to restrict a criminal defendant’s constitutional right to present a defense and confront and cross examine adverse witnesses.

NOW, THEREFORE, BE IT RESOLVED, that the Board of Governors of the Philadelphia Bar Association expresses its strong support for the proposed Amendment of the Comment to Pa. Rule of Evidence 401 generally excluding evidence of class; and

BE IT FURTHER RESOLVED, that the Philadelphia Bar Association authorizes the Chancellor or the Chancellor’s designee to communicate the content of this resolution to the Supreme Court of Pennsylvania and its Committee on Rules of Evidence, other bar associations, the legal community and the public at large, and to take such other action as may be appropriate; and

BE IT FURTHER RESOLVED, that the proposed amendment also should clarify that it is not meant to restrict a criminal defendant’s constitutional right to present a defense and confront and cross examine adverse witnesses.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: May 30, 2019