Rush, C.J.
Indiana’s tort trials should be about making injured parties whole—not about federal immigration policies and laws. Today we address two important issues of first impression: May an unauthorized immigrant sue for decreased earning capacity damages in a tort action? And if so, is that plaintiff’s unauthorized immigration status admissible at trial?
We first hold that the Indiana Constitution’s Open Courts Clause allows unauthorized immigrants to pursue claims for decreased earning capacity damages. We then provide an evidentiary framework for determining when unauthorized immigration status is admissible. That framework recognizes that while a plaintiff’s unauthorized immigration status is relevant to decreased earning capacity damages, admitting it would result in a collateral mini-trial on immigration—a mini-trial that brings significant risks of confusing the issues and unfair prejudice. Under Indiana Rule of Evidence 403, these risks will substantially outweigh immigration status’s relevance—making it inadmissible—unless the evidence’s proponent shows by a preponderance that the plaintiff will be deported. Finally, we hold that unaccounted-for contingencies in an expert’s damages calculations are issues for cross-examination, not grounds for exclusion. We therefore reverse the trial court’s contrary rulings and remand for it to apply this framework.
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Shiel Sexton argued to the trial court and Court of Appeals that Escamilla’s immigration status bars him from recovering his decreased earning capacity. But blocking unauthorized immigrants from pursuing decreased earning capacity claims would violate the Open Courts Clause in Article 1, Section 12 of the Indiana Constitution—and federal law does not require us to hold otherwise.
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II. The Admissibility of a Plaintiff’s Unauthorized Immigration Status Is an Evidentiary Question, Resolved by Indiana’s Relevance Rules.
Indiana’s Rules of Evidence guide the admissibility of unauthorized immigration status. Most states with similar provisions find immigration status inadmissible because its dangers substantially outweigh its probative value.
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Most courts applying Rule 403, then, exclude immigration status either because it is irrelevant or because any relevance is substantially outweighed by certain dangers. Having surveyed this landscape, we apply our own Rule 403 analysis. We look first to the relevance of unauthorized immigration status, then balance that relevance against the dangers of confusing the issues and unfair prejudice. As discussed below, we conclude that even though unauthorized immigration status is relevant to decreased earning capacity claims, the dangers of confusion and unfair prejudice make it inadmissible unless the plaintiff is more likely than not to be deported.
III. Under Rule of Evidence 403, a Plaintiff’s Unauthorized Immigration Status Is Inadmissible Unless the Proponent Shows by a Preponderance that the Plaintiff Will Be Deported.
While unauthorized immigration status is relevant to a plaintiff’s decreased earning capacity, it also carries a high risk of confusing the issues and some risk of unfair prejudice. Because of these dangers, a plaintiff’s unauthorized immigration status is admissible only under one limited circumstance: if the evidence’s proponent shows by a preponderance—in other words, that it is more likely than not—that the plaintiff will be deported.
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For these reasons, the admissibility of immigration status under Rule 403 for decreased earning capacity claims turns on the chances of deportation. If a plaintiff is more likely than not to be deported, the relevance is necessarily so high that it will not be substantially outweighed by the evidence’s risks. But if the chances of deportation fall below that level, immigration status should be excluded to avoid the dangers of confusing the issues and unfair prejudice.
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Conclusion
To determine whether a plaintiff’s unauthorized immigration status is admissible in decreased earning capacity claims, trial courts must weigh any relevance against the dangers of unfair prejudice and confusing the issues. Specifically, these dangers will substantially outweigh relevance unless the evidence’s proponent shows by a preponderance of the evidence that the plaintiff will be deported. We reverse the trial court’s evidentiary rulings and remand for it to apply this framework to Escamilla’s case.
Rucker, David, Massa, and Slaughter, JJ., concur