1

THE ART OF PREJUDICE: EXAMINING THE MINORITY

EFFECT INSIDE THE COURTROOM

BRITTANIE A. HOLMES

I. INTRODUCTION

“As American society has matured, blatant forms of racism

have increasingly been replaced by newer, more elusive, but equally
injurious forms of derision.” 1 Rule 403 of the Federal Rules of
Evidence states in part that “evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice…or misleading the jury…” 2 When inside of a courtroom,
parties to a case become the minority to a controlled majority, known
as the jury, who hold people’s fate in their hands. People’s names
are often tarnished by the attacks of their character on irrelevant
matters, which may be targeted based on their ethnic backgrounds,
religious beliefs, and even legal citizenship. Also, dangers of unfair
prejudice can arise if evidence demonstrates immoral character or
unpopular associations that could arouse juror antagonism,
overemphasizes negative connotations and incites a jury's
vindictiveness, invites unwarranted conclusions generating a risk of
fact-finding mistake, or unreasonably appeals to a jury's emotions or
prejudices. 3 Although shocking to some, the utilization and
exploitation of bigotry in the name of “justice” is alive and well.

1
Elizabeth L. Earle, Banishing the Thirteenth Juror: An Approach to the
Identification of Prosecutorial Racism, 92 COLUM. L. REV. 1212, 1222 (1992).
2
FED. R. EVID. 403.
3
D. Craig Lewis, Proof and Prejudice: A Constitutional Challenge to the Treatment
of Prejudicial Evidence in Federal Criminal Cases, 64 WASH. L. REV. 289, 322
(1989).
 2

A. Summary of Recent Case Law

In the 2010 decision of TXI Transp. Co. Inc. v. Hughes, 4 the

Supreme Court of Texas had the task of determining whether the
admission of evidence regarding the illegal immigrant status of one of
the parties to the case was harmful error by the lower court. 5 The
case consisted of a collision where several members of the Hughes
family died after their vehicle collided with an eighteen-wheel tractor-
trailer driven by Ricardo Rodriguez. 6 At the time, Rodriguez was
employed as the driver for TXI Transportation Company (“TXI”). 7
Surviving members of the Hughes family sued Rodriguez and TXI. 8
During the trial, TXI objected to evidence concerning
Rodriguez’s illegal immigrant status based on grounds of relevance
and prejudice. 9 The trial court overruled the objection. As a result,
“the jury learned Rodriguez had previously been deported and had
made several misrepresentations regarding his immigration status to
obtain his Texas commercial driver’s license and his employment
with TXI.” 10 Subsequently, the jury decided in favor of the Hughes
family finding that the negligence of Rodriguez and TXI was the
proximate cause of the accident, and awarded compensatory and
exemplary damages. 11 The court of appeals set aside the award for
exemplary damages, but affirmed the judgment. 12
On appeal, TXI argued that it was error to admit evidence of
Rodriguez’s illegal immigrant status because it was irrelevant to the
case and was impermissibly used to agitate the jury and impeach

4
TXI Transp. Co. v. Hughes, 306 S.W.3d 230 (Tex. 2010).
5
TXI at 233.
6
Id. at 233-34.
7
Id. at 234.
8
Id.
9
Id.
10
Id.
11
Id.
12
Id. at 234.
 3

Rodriguez’s credibility. 13 However, the Hugheses argued that

Rodriguez’s false representations were relevant to claims of negligent
hiring and negligent entrustment. 14
The Supreme Court of Texas ruled that Rodriguez’s
immigration status was not the cause of the collision and not relevant
to the negligent entrustment or hiring claims. 15 The Court reasoned
that Rodriguez’s statements about his immigration status were not
admissible because it was clearly a collateral matter and inadmissible
under Texas Rule of Evidence 608(b). 16 The rules state that “specific
instances of the conduct of a witness, for the purpose of attacking . . .
the witness’s credibility . . . may not be inquired into on cross-
examination of the witness nor proved by extrinsic evidence.” 17 In
regards to the harm of the erroneous admission, TXI argued “that the
repeated references to Rodriguez’s immigration problems and alleged
misrepresentations were inflammatory and deliberately calculated to
cause the jury to disbelieve Rodriguez.” 18
The Supreme Court of Texas concluded that Hughes
intentionally brought attention to Rodriguez’s illegal immigration
status. 19 The Court stated, “Such appeals to racial and ethnic
prejudices, whether ‘explicit and brazen’ or ‘veiled and subtle,’
cannot be tolerated because they undermine the very basis of our
judicial process.” 20 The Court held that the trial court erred by
admitting the evidence. 21 The error was harmful because its prejudice
was not outweighed by any probative value and fostered the

13
Id. at 240.
14
Id.
15
TXI Transp. Co., 306 S.W.3d at 241.
16
Id. at 241-42.
17
See id. at 242; TEX. R. EVID. 608(b).
18
TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 243 (Tex. 2010).
19
Id. at 245.
20
Id. (quoting Tex. Employers’ Ins. Ass’n v. Guerrero, 800 S.W.2d 859, 864 (Tex.
App.-San Antonio 1990, writ denied).
21
TXI Transp. Co., 306 S.W.3d at 245.
 4

impression that TXI should be held liable because it hired Rodriguez

as an illegal immigrant. 22 The court of appeals judgment was
reversed and the case was remanded to the trial court for a new trial. 23
In another 2010 decision, Salas v. Hi-Tech Erectors, 24 the
Supreme Court of Washington determined whether the trial court
abused its discretion by admitting evidence of Alex Salas’
immigration status when he sought damages for lost income. 25 Salas
entered the United States in 1989 with a visa, but the visa expired in
1994 and his application for citizenship was never processed. 26 Salas
was injured while working at a construction site when he slipped from
a ladder erected by Hi-Tech. 27 He sued Hi-Tech for negligence. 28
At trial, evidence of Salas’ undocumented immigrant status
was admitted. 29 The trial court recognized that some jurors would
probably be distracted by the immigration issue, thereby developing a
bad opinion of Salas. 30 Nevertheless, the court reasoned that Salases
immigration status was relevant because his seeking lost future wages
called into question of what type of currency the labor would be
valued. 31
The Supreme Court of Washington disagreed with the lower
courts, stating, “In light of the low probative value of immigration
status with regard to lost future earnings, the risk of unfair prejudice
brought by the admission of [Salas’] immigration status is too

22
See id.; TEX. R. EVID. 403.
23
Id.

24
Salas v. Hi-Tech Erectors, 230 P.3d 583 (Wash. 2010).
25
Id. at 585.
26
Id. at 584.
27
Id.
28
Id.
29
Id. at 585.
30
Id. at 584.
31
Salas, 230 P.3d at 585.
 5

great.” 32 The court held that with regard to Salases lost future
earnings, the probative value of his undocumented status was
substantially outweighed by the danger of unfair prejudice. 33
Therefore, the trial court’s decision to admit the evidence was an
abuse of discretion and may have had a harmful effect on the jury. 34
Salas was granted a new trial. 35

B. Statement of Significance

The recent decisions in TXI Transp. Co. Inc. v. Hughes and

Salas v. Hi-Tech Erectors are just a glance into the many cases where
a person’s character is questioned based on seemingly irrelevant and
prejudicial evidence. The Courts examined previous case law and
sought to establish the wrongful nature of parties calculatingly
addressing immigration status, even though it had no significance to
the cause of action.
The Supreme Court of Texas determined that references to
Rodriguez’s immigration status were a ploy to distract the jury from
the primary nature of the case. 36 The Supreme Court of Washington
concluded that references to Salas’ undocumented citizenship status
had a prejudicial and harmful effect on the case. 37 These cases
illustrate how mentions of collateral matters based on a person’s
ethnicity and citizenship can negatively influence a case. These cases
further illustrate that those strategies based on bigotry cannot be
tolerated in our judicial system.

C. Article Overview

The purpose of this article is to examine how the courts

address the issue of minority prejudices from the controlling majority.

32
Id. at 586-87.
33
Id. at 587.
34
Id.
35
Id.
36
TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 245 (Tex. 2010).
37
Salas v. Hi-Tech Erectors, 230 P.3d 583, 587 (Wash. 2010).
 6

This research is inspired by recent state court decisions which focused

on the erroneous admissions of collateral evidence regarding the
defendant’s immigration status. This research will examine and
analyze both state and federal systems along with case law that
focuses on minority group discriminations in regard to race, religion,
and in particular legal residency and citizenship. Moreover, this
article will be supported by case law and legal theories for the
purposes of providing an adequate analysis of the constitutionality of
a court’s requirement to ensure no one’s rights are violated when they
are entitled to have their trial not outweighed by prejudicial bigotry.
Part two provides a historical abstract of a person’s rights
under the judicial system. The summary presents a historical view of
an individual’s protection in the law even when answering to the
court for matters not in the realm of the primary issue of a case. The
summary will evaluate the rules of evidence and the cases that have
helped to further establish its meaning over the years.
Part three provides critical analysis, examining the threshold
between relevant and collateral matters and distinctions of the state
and federal court’s conduct regarding prohibited and permitted
discretions. It will also provide an analysis of the rulings. The
analysis revisits the decisions in TXI and Salas and further examines
the prejudicial impact of the admitted evidence. Lastly, the analysis
will focus on the Due Process element surrounding these types of
cases and the significant impact of negative connotations.
Part four will provide a summary of all the main points in this
article. In addition, this section will offer recommendations or
suggestions as they may relate to the analysis.

II. BACKGROUND

Prejudicial issues have surrounded this country since the

beginning of time. As the decades pass and times change, eyes are
opened to the various realms of cultures. Judicial control regarding
the use of potentially prejudicial evidence has been in existence for
over three hundred years. 38 Even in the 19th century, courts were
forced to address the sensitive issue of “color” being mentioned
inside the courtroom. In the 1889 case of Moss v. Sanger, a Texas

38
D. Craig Lewis, Proof and Prejudice: A Constitutional Challenge to the
Treatment of Prejudicial Evidence in Federal Criminal Cases, 64 WASH. L. REV.
289, 321 (1989).
 7

court declared, “Cases ought to be tried in a court of justice upon the

facts proved; and whether a party be Jew or gentile, white or black, is
a matter of indifference.” 39 During the last one hundred years, Texas
appellate courts have consistently condemned jury arguments based
on grounds of race, ethnicity, religion, and national origin. 40 The
vanishing of those tactics in the last twenty-five years and the scarcity
of such arguments in recent years indicates that society considers
them utterly beyond the pale. 41 However, courts are not always
definitive when prejudicial evidence based on someone’s ethnicity or
personal lifestyle is introduced.
The United States Supreme Court has acknowledged that the
exclusion of character evidence, based on its potential to prejudice the
person about whom it is being admitted, conflicts with the general
doctrine that a jury should reach an independent judgment based on
the merits of the case presented to it. 42 In addition, federal courts,
such as the Ninth Circuit Court of Appeals, have acknowledged that
the constitutionally protected interest at stake consists of the jury
deciding a case based on its evidence, cross examination, and
assistance of counsel. 43
Before the Federal Rules of Evidence were enacted in 1975,
comprehensive evidence codes existed in only a handful of
jurisdictions. 44 Controversy arose after the rules went into effect
because of the questionable approach to the interpretation of the
rules. 45 The rules provide the federal court system with uniformity in
deciding the admissibility of evidence and act as a model code system

39
Moss v. Sanger, 12 S.W. 619, 620 (Tex. 1889).
40
Texas Employers’ Ins. Ass’n. v. Guerrero, 800 S.W.2d 859, 866 (Tex. App. San
Antonio 1990).
41
Id.
42
Michelson v. United States, 335 U.S. 469, 476 (1948).
43
See e.g., Thompson v. Borg, 74 F.3d 1571, 1574 (9th Cir. 1996); Dickson v.
Sullivan, 849 F.2d 403 (9th Cir. 1988).
44
Ronald L. Carlson et al., Evidence in the Nineties, 21-23 (3d ed. 1991).
45
Edward J. Imwinkelried, Moving Beyond “Top Down” Grand Theories of
Statutory Construction: A “Bottom Up” Interpretive Approach To The Federal
Rules of Evidence, 75 OR. L. REV. 389, 390 (1996).
 8

on which the majority of the states have designed their individual

laws of evidence. 46 However, instead of always following the precise
language of a rule, courts have often based their interpretations on
legislative history, common law, and evidentiary policies. 47

Rule 403 is a general rule applicable to all forms of evidence,

which authorizes the exclusion of evidence only when unfair
prejudice substantially outweighs the probative value of the
potentially admissible evidence. 48 The rule requires the court to
weigh the probative value of evidence against factors such as: (1) the
danger of the evidence causing undue prejudice to the party seeking
its exclusion; (2) the danger of the evidence confusing the jury as to
the issues of the case; (3) the danger of the evidence generally
misleading the jury; or (4) the danger of the presentation of the
evidence causing an undue delay or waste of time. 49 This rule is
fundamental in the rules of evidence and is strongly supported by case
law as further discussed in the analysis section of this article. Its
purpose is to prevent a jury from making inaccurate judgments based
on emotion and to ensure an efficient, orderly and fair process of
trial. 50

III. ANALYSIS

A. The Threshold to Admit Relevant Evidence v. Collateral Matters

Many State and Federal Courts have been torn on how to

admit, although seemingly prejudicial, matters of relevance in a case.
Evidence is relevant and necessary if its purpose for admission
pertains to the consequence of the action and makes the existence of

46
FED. R. EVID., judicial app.
47
See Werner v. Upjohn Co., 629 F.2d 848, 856 (4th Cir.), cert. denied, 449 U.S.
1080 (1980).
48
FED. R. EVID. 403.
49
See, supra note 46.
50
See, supra note 46, advisory committee’s note.
 9

the identified fact more probable. 51 “When evidence is likely to

stimulate an emotional response rather than a rational decision, a
danger of unfair prejudice exists.” 52 In instances where there is doubt
of a prejudicial nature, partiality should be shown in favor of the
targeted party and evidence exclusion. 53
The test to determine whether a matter is collateral depends on
whether the cross-examining party would be entitled to prove it as a
part of their case. 54 “Two types of evidence pass this test: (1) facts
relevant to a particular issue; and (2) facts which discredit a witness
by pointing out the witness’ bias, corruption, or lack of
competency.” 55 However, there is an exception to the general rule
that a party is not entitled to impeach a witness on a collateral
matter. 56 If a witness leaves a false impression concerning a matter
relating to their argument, the opposing party is permitted to correct
that false impression. 57 “If a fact may be shown in evidence for any
purpose independent of contradiction, it is not collateral.” 58
Racial remarks fall into three categories: racial slurs, non-
derogatory comments, and neutral comments. 59 Racial slurs
universally are considered prejudicial, thereby impermissible, and
non-derogatory comments, which refer to a defendant's, witness', or
victim's race for no justifiable reason, also have been subject to being

51
State v. Dennison, 801 P.2d 193, 203 (Wash. 1990).
52
State v. Powell, 893 P.2d 615, 627 (Wash. 1995).
53
Id.
54
See e.g., TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 241-42 (Tex. 2010); Bates
v. State, 587 S.W.2d 121, 133 (Tex. Crim. App. 1979); Frechin v. Thornton, 326
S.W.2d 122, 126 (Mo. 1959).
55
Foster v. State, 869 So.2d 743, 745 (Fla.App. 2004) (quoting Lawson v. State, 651
So.2d 713, 715 (Fla. 2d DCA 1995).
56
Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990).
57
Id.
58
Frechin v. Thornton, 326 S.W.2d 122, 126 (Mo. 1959).
59
Harvard Law Review Association, VI. Racial Bias and Prosecutorial Conduct at
Trial, 101 HARV. L. REV. 1588, 1590 (1988).
 10

struck down by courts. 60 “A prosecutor makes a non-derogatory

comment when, for example, solely to emphasize the race of the
parties at trial, she refers repeatedly to the arresting officers as white
and to the defendant as black.” 61
In contrast, neutral comments have been permitted by most
courts because objective, justifiable reasons for referring to race
underlie them and they have a probative value that outweighs any
prejudicial impact. 62 A permissible, neutral comment is that which
involves limited references to race made solely for purposes of
identification, such as the height and weight of a defendant or
victim. 63
In an attempt to justify the admission of questionable
prejudicial evidence, courts have employed the “harmless error
analysis.” Although erroneous evidentiary rulings may be insufficient
to justify reversal, courts must still consider whether the cumulative
effect is harmless. 64 The erroneous admission of evidence is harmless
unless the error probably caused the rendition of an improper
judgment. 65 In Chapman v. California, the Supreme Court articulated
a harmless constitutional error if the reviewing court can say beyond a
reasonable doubt that the disputed evidence did not contribute to the
court’s verdict or decision. 66 The Chapman Court observed that
“there are some constitutional rights so basic to a fair trial that their
infraction can never be treated as harmless error.” 67 The appropriate
test for harmlessness is whether the Court can say with fair assurance,
after stripping the erroneous evidence from the whole, that the

60
Harvard, supra note 57, at 1590.
61
Harvard, supra note 57, at 1590.
62
Harvard, supra note 57, at 1590-91.
63
Harvard, supra note 57, at 1591.
64
Malek v. Federal Ins. Co., 994 F.2d 49, 55 (2nd Cir. 1993).
65
Id.
66
Chapman v. California, 386 U.S. 18, 23-24 (1967).
67
Id. at 23.
 11

remaining evidence was independently sufficient to support the

verdict and the jury was not substantially influenced by the error. 68
Texas courts have usually referred to improper arguments as
“curable” or “incurable.” 69 A jury argument is “curable” when the
harmful effect of the argument can be eliminated by a trial judge's
instruction to the jury to disregard the statement(s) they heard,
making error “cured” and rendered harmless by the instruction. 70
Conversely, an argument may be so provocative that its harmfulness
could not be eliminated by an instruction to the jury to disregard it
rendering the prejudicial nature to be “incurable.” 71 The United
States Supreme Court once held, “[I]f one cannot say, with fair
assurance . . . that the judgment was not substantially swayed by the
error, it is impossible to conclude that substantial rights were not
affected.” 72

B. The Standard of Fairness

1. The Prejudicial Impact Standard: A Look into the Interpretation of

Rule 403

The goal of Rule 403 73 is to eliminate the obvious occurrence

in which a jury will decide a case based on personal emotion rather
than be motivated by the credible force of the probative evidence. 74
Subsequently, courts and scholars have long believed that certain
types of evidence can have profound reliability-threatening impacts
on the outcome of trials. 75 For example, in the 1993 decision of

68
State v. Guthrie, 461 S.E.2d 163, 190 (W. Va. 1995).
69
Texas Employers’ Ins. Ass’n. v. Guerrero, 800 S.W.2d 859, 864 (Tex. App. San
Antonio 1990).
70
Id.
71
Id.
72
Kotteakos v. United States, 328 U.S. 750, 765 (1946).
73
FED. R. EVID. 403.
74
State v. Guthrie, 461 S.E.2d 163 (W. Va. 1995).
 12

United States v. Ham, 76 the Fourth Circuit court acknowledged, “[w]e

are especially sensitive to prejudice in a trial where defendants are
members of an unpopular religion.” 77 In order to uphold justice in the
courts, a trial judge must not permit a jury's finding to be decided on
account of racial or gender bias and an unpopular political belief or
opinion. 78 “If rule 403 is ever to have a significant and effective role
in our trial courts, it must be used to bar the admission of this highly
prejudicial evidence.” 79 Thus, in the performance of judicial duties, a
judge is prohibited from manifesting bias or prejudice based on race,
sex, religion or national origin against parties, counsel or others by
words or conduct and shall not knowingly permit staff, court officials
and others subject to the judge's direction and control to do so. 80
Evident in the cases mentioned throughout this article, the
solicitation of judgment based on a person’s “status” implies an
immutable characteristic that goes beyond the relevant issues of a
case. 81 Even in instances where immigration status may have
marginal probative value in regards to credibility, many courts have
held that such evidence is properly excluded for undue prejudice
under Rule 403. 82 In the inspired, recent decision of TXI Transp. Co.
Inc. v. Hughes, the Court agreed that the Hughes’s repeated inclusion

75
D. Craig Lewis, Proof and Prejudice: A Constitutional Challenge to the
Treatment of Prejudicial Evidence in Federal Criminal Cases, 64 WASH. L. REV.
289, 321 (1989).
76
United States v. Ham, 998 F.2d 1247 (4th Cir. 1993).
77
Id. at 1252-53.
78
Guthrie, 461 S.E.2d at 189.
79
Id.
80
Texas Employers’ Ins. Ass’n. v. Guerrero, 800 S.W.2d 859, 866 (Tex. App. San
Antonio 1990) (emphasis added).
81
Earle, supra note 1, at 1216.
82
See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 244 (Tex. 2010); Clemente v.
State, 707 P.2d 818, 829 (Cal. 1985) (holding immigration status, "even if
marginally relevant was highly prejudicial"); Diaz v. State, 743 A.2d 1166,
1184(Del. 1999) (finding that even if a witness's concern about immigration status
was relevant to impeach her, the court still must "determine if the probative value of
that immigration status . . . is outweighed by any unfair prejudice").
 13

into the case of Rodriguez's nationality, ethnicity, and illegal-

immigrant status was clearly calculated to inflame the jury against
him. 83 This type of case goes beyond what is considered harmless
and fair. When a person’s ethnicity, nationality, religious beliefs, or
even political beliefs, are prejudicially brought to the forefront for the
motive of exciting emotion in the courtroom, there is a serious
problem. Although Rule 403 is designed to eliminate this type of
situation, the reality is that once a prejudicial remark is spoken, the
remark stays embedded into the minds of everyone in the courtroom,
especially the jury. Subsequently, the person targeted by the
irrelevant prejudicial statements immediately becomes a disliked
minority on matters not even in issue. 84
Looking back at Salas v. Hi-Tech Erectors, the trial court’s
decision was overturned and the Court held that with regard to Salas’
lost future earnings, the probative value of his undocumented status
was substantially outweighed by the danger of unfair prejudice. 85
Courts in many jurisdictions have also held that illegal immigrant
status is irrelevant to liability in tort, while in certain cases the courts
have provided divided systems of trial or limiting instructions,
allowing the introduction of such evidence to calculate lost future
earnings once liability has been established. 86 This examination
shows that Rule 403 vests broad discretion in trial courts to exclude
prejudicial evidence. However, lawyers have no right to intentionally
open up a realm of prejudicial statements and demoralize the ethnic
harmony of society simply to win a case. 87

83
TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 244 (Tex. 2010).
84
See Texas Employers’ Ins. Ass’n. v. Guerrero, 800 S.W.2d 859, 863 (Tex. App.
San Antonio 1990) (“While most improper jury arguments can be cured by
objection and instruction to disregard, appeals to racial prejudice are one of the
exceptional kinds of argument that are considered incurable”).
85
Salas v. Hi-Tech Erectors, 230 P.3d 583, 586-87 (Wash. 2010).
86
See, e.g., Hagl v. Jacob Stern & Sons, Inc., 396 F. Supp. 779 (E.D.Pa. l979);
Melendres v. Soales, 306 N.W.2d 399 (Mich. Ct. App. 1981); Gonzalez v. City of
Franklin, 403 N.W.2d 747 (Wis. 1987).
87
Texas Employers’ Ins. Ass’n. v. Guerrero, 800 S.W.2d at 865.
 14

2. State and Federal Court Assessments

The denial of due process results in the failure to observe that

fundamental fairness essential to the theory of justice. 88 Federal
courts, along with State jurisdictions, have stated that where race,
gender, or religion is a relevant factor in the case, its admission is not
prohibited unless the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice. 89 However, there are
also instances where irrelevant prejudicial statements are admitted. In
determining whether a statement made or evidence introduced
represents an occasion of misconduct, courts look at the statement or
evidence in isolation and decide if it is improper. 90 If it is improper,
courts evaluate whether the improper statement or evidence rendered
the trial unfair. 91 Some factors relevant to the evaluation include the
extent to which the statement or evidence was invited, whether the
statement or evidence was isolated or extensive, and whether the
statement or evidence was deliberately placed before the jury to divert
attention to irrelevant and improper matters. 92 Although the
prohibition on appeals to racial and ethnic prejudice is universal, the
precise standard varies from jurisdiction to jurisdiction.
Many jurisdictions have held that a person’s immigration
status is not admissible to attack their character for truthfulness. 93 In
addition, there is authority to support the notion that matters such as
race, religion, and nationality should be kept from a jury's

88
Lisenba v. California, 314 U.S. 219, 236 (1941).
89
See Olden v. Kentucky, 488 U.S. 227 (1988); State v. Guthrie, 461 S.E.2d 163
(W. Va. 1995); State v. Crockett, 265 S.E.2d 268 (W.Va. 1979).
90
Guthrie, 461 S.E.2d at 183.
91
Id.
92
See generally Darden v. Wainwright, 477 U.S. 168 (1986) (holding that a trial
counsel’s performance must fall below an objective standard of reasonableness in
order to be deprived of effective assistance of counsel); State v. Sugg, 456 S.E.2d
469 (W. Va. 1995) (prosecutorial comments must be so egregious and prejudicial
that would manifest injustice from the remarks).
93
See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 242 (Tex. 2010); State v.
Avendano-Lopez, 904 P.2d 324, 332 (Wash. Ct. App. 1995).
 15

consideration. 94 For example, in the 1946 case of Peck v. Bez,

counsel for the plaintiff made reference to the defendant’s Muslim
religion and Hungarian nationality. 95 The Supreme Court of Appeals
of West Virginia held that those matters were not pertinent or relevant
to the primary issue. 96 The Court recognized that the lower court had
charged the jury to disregard the prejudicial questions and
statements. 97 However, it was made known that those antics have no
place in the court and counsel should not engage in such conduct
because it violates the decorum which should surround a trial by
jury. 98
Similarly, the State of Washington has addressed the
substantial likelihood of courtroom misconduct affecting a jury
verdict and thus denying the right to a fair trial. 99 In the 1995 case of
State v. Avendano-Lopez, the Court of Appeals of Washington
reviewed the lower court’s decision in denying a mistrial after the
defendant was questioned about his immigration status. 100 The
Court, quoting an earlier case named State v. Torres, said, “We do not
condone any reference to a person’s race which is intended to slur or
to disparage either the person or the race. . . . [the references’] effect
may have been to impugn the standing of the defendants before the
jury to intimate that the defendants would be more likely than those
of other races to commit the crime charged. Such an inference is
improper and prejudicial.” 101 Although the Court agreed that the
questions regarding Avendano-Lopez’s ethnic heritage and
immigration status were improper and calculated to “incite the jury’s
passion and prejudice,” 102 the Court affirmed the trial court’s denial
94
State v. Guthrie, 461 S.E.2d 163, 187 (W. Va. 1995).
95
Peck v. Bez, 40 S.E.2d 1, 9-10 (W. Va. 1946).
96
Id. at 10.
97
Id.
98
Id.
99
See State v. Avendano-Lopez, 904 P.2d 324, 328 (Wash. Ct. App. 1995).
100
Id. at 331.
101
Id. (quoting State v. Torres, 554 P.2d 1069, 1071-72 (Wash. Ct. App. 1976)).
102
Id. at 331-32.
 16

of the motion for mistrial. 103 The Court reasoned that the misconduct
likely did not affect the jury’s verdict because the objection to the
improper question was sustained and Avendano-Lopez was not
permitted to answer, the case against him was very strong, and the
jury was already aware of the defendant’s Hispanic background. 104
Across the spectrum, race has been an especially risky subject.
Stemming from a 1977 conviction from the Fifth Circuit in the case
Russell v. Collins, 105 defense lawyers for James Russell worked on
briefs for submission to the Texas courts, the lower federal courts,
and ultimately the United States Supreme Court. 106 The attorneys
alleged that the county prosecutor in the capital murder trial had
injected the issue of race into the proceedings by asking an all-white
jury if they could imagine the fear of the victim being with the three
“black” suspects. 107 “The comments from Russell's trial exemplify
two different types of remarks challenged in courts during this
century, the explicit and implicit references to color.” 108 With no
standard of defining racism in the judicial system, no court agreed
with the defense counsel’s arguments and Russell was subsequently
executed by lethal injection. 109
Conversely, the Ninth Circuit has noticed the negative effect
of racially biased statements as evident in the case of United States v.
Kallin. 110 In Kallin, a witness, whose credibility was not in issue,
testified to the defendant’s dislike of “Mexicans” where the case was
regarding tax evasion. 111 The Court recognized reversible error

103
Id. at 332.
104
Id. at 332-33.
105
Russell v. Collins, 944 F.2d 202 (5th Cir. 1991) cert. denied, 501 U.S. 1278
(1991).
106
Earle, supra note 1, at 1212.
107
Earle, supra note 1, at 1212.
108
Earle, supra note 1, at 1212.
109
Earle, supra note 1, at 1212-13.
110
United States v. Kallin, 50 F.3d 689, 696 (9th Cir. 1995).
111
Id.
 17

because that portion of the witness’s testimony was not probative of

any matter at issue in the case and could only be used as a tactic to
prejudice the jury against Kallin. 112 Quoting a 1986 case of United
States v. Ebens, the Court stated, “We need not know the racial
composition of the jury, for nearly all citizens find themselves
repelled by such blatantly racist remarks and resentful of the person
claimed to have uttered them.” 113
Religious beliefs have also been used as a tactic to impeach
witnesses, even when religion has no relevance to the matter at issue.
Rule 610 in the Federal Rules of Evidence provides that “[e]vidence
of the beliefs or opinions of a witness on matters of religion is not
admissible for the purpose of showing that by reason of their nature
[his] credibility is impaired or enhanced.” 114
The Second Circuit tackled the collateral matter of religion in
the 1982 case, Contemporary Mission Inc. v. Bonded Mailings Inc.115
In Contemporary Mission, the lower court’s refusal to permit
questioning of a witness' beliefs in the Roman Catholic Church, in a
breach of contract action, was affirmed because religion was a
“collateral, potentially confusing and prejudicial, issue which would
perforce have raised a ‘religious problem.’” 116 The Second Circuit
reasoned that an “uncertain constitutional dimension,” such as
religion, was not appropriate to be addressed in a case regarding a
contract dispute. 117
Similarly, in Malek v. Federal Ins. Co., 118 the Second Circuit
ruled that the apparent questioning from the defense counsel
concerning the opposing parties’ Hasidic Jewish beliefs was blatantly
prejudicial because the defense counsel attempted to compare the

112
Id. at 696 n.7.
113
Id. at 696 n.7 (quoting United States v. Ebens, 800 F.2d 1422, 1434 (6th Cir.
1986)).
114
FED. R. EVID. 610.
115
Contemporary Mission Inc. v. Bonded Mailings Inc., 671 F.2d 81 (2d Cir. 1982).
116
Id. at 84.
117
Id.
118
Malek v. Federal Ins. Co., 994 F.2d 49 (2d Cir. 1993).
 18

witness’s character to his religious beliefs. 119 The dissenting opinion

in Malek interpreted the questions regarding religious beliefs as a
means to show bias, which is permissible under Rule 610, because the
impeached witness’ religious affiliation was the same as the
plaintiff. 120 The dissent contrasted the Contemporary Mission Inc. v.
Bonded Mailings Inc. decision in stating, “[T]he witness here was not
subject to ‘extensive cross-examination . . . on the genuineness of his
. . . [religious] affiliation . . . .’” 121 However, the majority saw
enough evidence to think differently.
These cases, amongst others, exemplify how Courts
continuously tackle and are at times divided on the issue of calculated
bias between opposing parties. One can easily perceive how the
judicial system can be manipulated to instantly place a person as a
targeted minority inside the courtroom. Although courts have tried to
clean up and correct certain misconduct, the blatant manipulation has
seemed to still slip between the cracks over the years. “When a racial
or ethnic appeal is made, the dispute is no longer confined to the
litigants; there has been an attack on the social glue that helps bind
society together.” 122 The manipulation not only goes against the
court, but it also goes against society and it makes no difference
whether the victimized party has shown harm. 123

3. Court’s Analysis: Revisiting TXI Transp. Co. Inc. v. Hughes and

Salas v. Hi-Tech Erectors

Upon reviewing the trial court’s decision in TXI Transp. Co.

Inc. v. Hughes, the Supreme Court of Texas noticed that when
Rodriguez was called as a witness, the first questions directed to him

119
Id. at 54.
120
Id. at 60 (McLaughlin, J., dissenting).
121
Id. at 59.
122
Texas Employers’ Ins. Ass’n. v. Guerrero, 800 S.W.2d 859, 865 (Tex. App. San
Antonio 1990).
123
Id.
 19

concerned his immigration status. 124 Also, during the trial, jurors
heard nearly forty references to Rodriguez’s status, including thirty-
five as an “illegal immigrant” and seven concerning a prior
deportation. 125 There were also thirty-two references to Rodriguez's
misconduct in using a false Social Security number, sixteen
references to Rodriguez's “invalid” or “fraudulently obtained”
commercial driver's license, and seven references that Rodriguez was
a “liar.” 126
In delivering the opinion of the Court, Justice David Medina
acknowledged TXI’s assertion that Hughes’s continuous reference to
Rodriguez’s citizenship was simply a ploy to disguise their real claim,
which was “that Rodriguez was negligent for driving without a right
to be in this country and that TXI was negligent for hiring an illegal
alien.” 127 The Court held that the trial court erred by admitting the
prejudicial evidence impugning Rodriguez’s character on the basis of
his immigration status. 128 The immigration information was not
relevant to the negligence claim against TXI. 129 Justice Wainwright
concurred in part and dissented in part. He expressed concern
regarding the expert witness called by the Hugheses. 130 That witness
concluded that Rodriguez caused the accident, although there were no
eye witnesses to back up the conclusion. 131 In fact, all five of the
eyewitnesses, whom the expert failed to sufficiently address, testified
that they never saw Rodriguez’s gravel truck in the westbound
lane. 132

124
TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 243 (Tex. 2010).
125
Id.
126
Id.
127
Id. at 244.
128
Id. at 245.
129
Id. at 242.
130
Id. at 245 (Wainwright, J., dissenting).
131
Id. (Wainwright, J., dissenting).
132
Id. (Wainwright, J., dissenting).
 20

The Court’s decision to reverse the trial court’s holding is

meritorious. Because immigration is a sensitive issue, the Court
acknowledged that there was a lack of respect and sincerity shown by
Hughes. The Court seemed to have sent a message regarding
intentional references to Rodriguez’s citizenship. In essence, such
prejudicial references to immigration status will not be tolerated. It
was obvious that the opposing party sought to distract the jury and
embed in their minds how being an “illegal immigrant” was a crime
in itself despite the primary issue at hand, which was whether
Rodriguez negligently caused the vehicle accident. Thus, the
Supreme Court rightfully concluded that Rodriguez was intentionally
and improperly discriminated against, which may have played a
major part in the trial court’s jury verdict. Undoubtedly, when jurors
continuously hear a negative statement, it will have an impact on their
decision. The negative connotation of the word “illegal” alone bears
weight, a topic discussed in Part C of this article.
In Salas v. Hi-Tech Erectors, Justice Mary Fairhurst delivered
the opinion of the court. Alex Salas sought to reverse the Court of
Appeals decision, in which evidence of his being an undocumented
immigrant was admitted by the trial court. 133 In this case, as opposed
to TXI, admissibility of Salas' immigration status was conditioned on
his seeking lost future wages. 134 However, Salas had been in the
United States since 1989, was working, purchased a home, and had
three children who were born in the United States. 135
At the trial court, Salas relied primarily on a criminal case,
State v. Avendano-Lopez, 136 to support his contention that any
discussion of nationality or immigration status is inherently
prejudicial. 137 “The Avendano-Lopez court held that questions of
nationality and immigration status are irrelevant, appeal to a jury's

133
Salas v. Hi-Tech Erectors, 230 P.3d 583, 584 (Wash. 2010).
134
Id. at 585.
135
Id.
136
State v. Avendano-Lopez, 904 P.2d 324 (Wash. Ct. App. 1995).
137
Salas v. Hi-Tech Erectors, 177 P.3d 769, 772 (Wast. Ct. App. 2008), overruled
by Salas v. Hi-Tech Erectors, 230 P.3d 583 (Wash. 2010).
 21

passions and prejudices, and are generally improper and inadmissible

in a court of justice.” 138
What is puzzling is how the Court of Appeals of Washington
approached their decision in the case of Salas. Oddly, the Court of
Appeals cited to case law, which stood against Salas’ argument of
irrelevant prejudicial evidence, such as the New Hampshire Supreme
Court case of Rosa v. Partners in Progress, Inc. 139 The Court in Rosa
held that evidence of a plaintiff's status may well be prejudicial, but
such proof is essential if an illegal alien wishes to pursue a claim for
lost earning capacity. 140 The Court of Appeals also acknowledged
other courts that have been restrictive in admitting evidence on the
issue of immigrant status. 141 However, their reason for finding no
abuse of discretion was based on Salas making “no attempt to
mitigate any potential prejudice caused by evidence of his
immigration status” and “the issue arose so late in the process and
relevant authority was not provided to the court.” 142 The court
questionably favored a lack of evidentiary relevant authority and
legislative silence in their interpretation and reasoning. In other
words, the court turned its cheek to the core issue of unfair prejudice
towards Salas’ immigration status and based its decision on
completely different grounds.
The Supreme Court of Washington acknowledged other
states’ case law and recognized that the admission of a person’s
immigration status is prejudicial. 143 For example, the Court cited the
Supreme Court of Wisconsin’s declaration in Gonzalez v. City of
Franklin that the admission of immigration status has “obvious
prejudicial effect.” 144 In addition, the Salas Court reasoned that

138
Id.
139
Rosa v. Partners in Progress Inc., 868 A.2d 994, 1002 (N.H. 2005).
140
Id.
141
Salas v. Hi-Tech Erectors, 177 P.3d 769, 773 (Wast. Ct. App. 2008), overruled
by Salas v. Hi-Tech Erectors, 230 P.3d 583 (Wash. 2010).
142
Id. at 774.
143
Salas v. Hi-Tech Erectors, 230 P.3d 583, 586 (Wash. 2010).
144
Id. (quoting Gonzalez v. City of Franklin, 403 N.W.2d 747, 760 (Wis. 1987)).
 22

“[I]ssues involving immigration can inspire passionate responses that

carry a significant danger of interfering with the fact finder's duty to
engage in reasoned deliberation. In light of the low probative value
of immigration status with regard to lost future earnings, the risk of
unfair prejudice brought about by the admission of a plaintiff's
immigration status is too great.” 145 Therefore, although the
immigration status was relevant to the issue of lost future earnings,
the probative value of Salas’ undocumented status was substantially
outweighed by the danger of unfair prejudice. 146
The Salas court’s decision to consider the “undocumented
immigrant” statements as prejudicial is understandable. Although
many courts have admitted statements regarding immigration for the
purpose of lost future wages, 147 the Supreme Court of Washington
took a step back and analyzed the situation by a personal perspective.
The Court isolated the statements and correctly determined the
occasion of misconduct to be improper and unfair to Salas. Some
people may argue that the comments were “neutral” because
justifiable reasons for referring to Salas’ immigrant status underlie
them for the purpose of determining currency for the payment of lost
future wages. However, when the status remarks are repeatedly
made, the “obvious prejudicial effect” is triggered.

145
Salas, 230 P.3d at 586-87.

146
Id. at 587. Justice Jerry Alexander, in dissent, argued that the trial judge's
decision to admit evidence of Salas' immigration status was not manifestly
unreasonable. Id.
147
See e.g., Majlinger v. Cassino Contracting Corp., 802 N.Y.S.2d 56, 66 (App.
Div. 2005), aff'd sub nom., Balbuena v. IDR Realty LLC, 845 N.E.2d 1246, 1260
(N.Y. 2006); Barahona v. Trustees of Columbia Univ. in City of N.Y., 816
N.Y.S.2d 851, 852 (Sup. Ct. 2006); Rosa v. Partners in Progress, Inc., 868 A.2d
994, 1002 (N.H. 2005).
 23

C. The Bigotry of the Controlling Majority

1. The Demise of Due Process: Clean Up What Is Messed Up

While Due Process does not confer a right to an error-free

trial, it does guarantee a fundamental right to a fair trial. 148 “The aim
of the requirement of due process is not to exclude presumptively
false evidence, but to prevent fundamental unfairness in the use of
evidence whether true or false.” 149 Even though a court may not
believe the prejudicial impact section of Rule 403 applies, Due
Process still requires that the court assess the risk of mistaken
evaluation. 150
In addition, the Equal Protection Clause of the Fourteenth
Amendment is indicative of Congress’s aim to ensure a fair trial for
all. In the 1886 case of Yick Wo v. Hopkins, the Supreme Court
explained that the provisions in the United States Constitution are
universal to all persons within the territorial jurisdiction of the U.S.
without regard to any differences of race, color, or nationality. 151
While the Due Process and Equal Protection Clauses of the
Fourteenth Amendment apply by their terms to states, 152 the problem
is that all courts have not worked hard enough to enforce the law of
the land and most citizens do not take the time to learn case law or
find interest in the true meaning of the U.S. Constitution. Society is
continuously trapped in a box where people are not susceptive to
opening up their minds and learning about the various nationalities
and immigration, regardless of legal or illegal status. Furthermore,
the Fifth Amendment specifically states that no person shall be
“deprived of life, liberty, or property without due process of law.” 153

148
State v. Guthrie, 194 W.Va. 657, 684 (1995).
149
Lisenba v. California, 314 U.S. 219, 236 (1941).
150
D. Craig Lewis, Proof and Prejudice: A Constitutional Challenge to the
Treatment of Prejudicial Evidence in Federal Criminal Cases, 64 WASH. L. REV.
289, 350 (1989).
151
Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).
152
U.S. CONST. amend. XIV, § 1.
153
U.S. CONST. amend. V.
 24

This provision broadly refers to “person” and not just a citizen. The
key wording proves that even undocumented immigrants shall have
the same due process rights as any other person living within the U.S.
territory. The key wording further includes all races, genders, and
nationalities. However, the meaning and interpretation of the
provision are obviously not always a priority when it comes to the
intentional solicitation of a biased judgment in court. Thus, it is up
the state and federal courts to ensure that absolutely no person is
deprived of their due process rights. If someone is possibly convicted
or biased based on their ethnicity, religious beliefs, or nationality,
then the court has simply failed us all. No one should be purposely
subjected to unfair prejudicial evidence.

2. The Harm of Prejudice -Racially Based Admissions

If lower courts were not corrected on their decisions to allow

collateral prejudicial evidence, a precedent would be established
permitting calculated, subtle racial or ethnic arguments by litigants in
all types of cases so long as the arguments were properly dressed up
and disguised. 154 The disguise of racial and ethnic arguments would
continuously destroy the integrity of the courts. All persons, no
matter their ethnicity, should feel free to litigate their cases before
juries anywhere “without facing state-of-the-art ethnic pleas in
closing argument”. 155 “Such arguments are forbidden, and it matters
not whether counsel suggests -- depending upon the venue -- that the
jury reward or penalize a litigant for belonging or not belonging to a
racial or ethnic group.” 156
One of the biggest problems today is the hidden prejudice of
simply hearing “illegal immigrant.” “Much of the discrimination
based on perceived foreignness is rooted in unarticulated notions of
what it is to be American.” 157 The word “illegal” automatically sends

154
Texas Employers’ Ins. Ass’n. v. Guerrero, 800 S.W.2d 859, 865 (Tex. App. San
Antonio 1990).
155
Id.
156
Id.
157
Natsu Taylor Saito, Alien and Non-Alien Alike: Citizenship, “Foreignness,” and
Racial Hierarchy in American Law, 76 OR. L. REV. 261, 336 (1997).
 25

out a negative connotation, which in turn can cause an undocumented

immigrant to be prejudiced based on personal opinions toward
“illegal people.”
America's acceptance of foreigners today depends upon the
popular view of legal versus illegal immigrant status and the popular
view of which ethnic groups benefit American society and which
simply burden our economic and social structures. 158 “Foreignness
discrimination is problematic because, as with the intersection of race
and gender, it does not fit neatly into the designated categories, but
falls within the cracks.” 159 As a juror sits inside the courtroom,
hundreds of thoughts run through his or her mind. In today’s society,
where immigration is a hot topic, there are strong views regarding
undocumented immigrants. When jurors hear “illegal,” they can
easily think negatively about changes to society, including increased
taxes, unemployment, or political biases all because someone is
“illegal.” In turn, the focus ignorantly turns to “teaching that
immigrant a lesson” rather than focusing on the primary issue of a
case.

IV. CONCLUSION

Calculated prejudicial questions and statements based on race,

religion, nationality, or personal beliefs have no place in the court.
The court is obligated to see that the guarantee of a right to a fair trial
under our Constitution is honored. The right to a fair trial cannot be
guaranteed if there is intentional bigotry inside the courtroom. If the
court cannot determine with fair assurance that a verdict was not
influenced by the error, then there is unquestionable harm.
In order for Courts to crack down on the epidemic of blatant
racism inside the courtroom, measures must be taken. If someone
tends to disrespect the decorum of the court, they should be held in
contempt and be punished for their actions. Furthermore, the
solicitation of judgment based on a person’s “status” implies an
immutable characteristic that goes beyond the relevant issues of a
case. The court should also refrain from allowing the open use of the

158
Melinda Smith, Criminal Defense Attorneys and Noncitizen Clients:
Understanding Immigrants, Basic Immigration Law and How Recent Changes in
Those Laws May Effect Your Criminal Cases, 33 AKRON L. REV. 163, 169 (1999).
159
Saito, supra note 152, at 336.
 26

word “illegal” when referring to an undocumented immigrant. It

brings about a negative connotation, which can quickly turn against a
party in court. Specific standards need to be set in place so no court
will have an excuse as to their interpretation of when intentional
prejudice has occurred. There needs to be unity when examining how
to properly address an issue when an occasion of misconduct in
regards to blatant racism has occurred. The determination of whether
a statement made or evidence introduced represents an occasion of
misconduct, should be looked at in isolation and decided if improper
and unfair. By isolating and thoroughly examining the specific
misconduct, the guarantee to the right of a fair trial will be upheld.
No person in our society should be subjected to prejudice inside the
courtroom. If our courts do not continuously work to correct the
issue, biased verdicts will continue and all confidence in our courts
will be lost.