State Your Case: Best Practices for Presenting a Cultural Defense in Criminal Litigation

Special Issue: Cultural Expert Witnessing

ISBN: 978-1-78743-764-7, eISBN: 978-1-78743-763-0

ISSN: 1059-4337

Publication date: 29 January 2018

Abstract

When someone’s actions deviate from the social norms of the majority, those actions may be used as the basis for criminal charges against the person, even when the person’s actions are considered innocent within his or her culture. This chapter examines the evidence that can be presented on behalf of a person wishing to invoke a cultural defense, and the author also shares her own experiences in utilizing the defense as an attorney. Cultural defenses can be effective; however, there are arguments both for and against its use. Also explained are processes of pretrial litigation, qualifying an expert witness, trial, sentencing, and appeals.

Keywords

Citation

Crabbe, H. (2018), "State Your Case: Best Practices for Presenting a Cultural Defense in Criminal Litigation", Sarat, A. and Rodriguez, L. (Ed.) Special Issue: Cultural Expert Witnessing (Studies in Law, Politics, and Society, Vol. 74), Emerald Publishing Limited, pp. 165-184. https://doi.org/10.1108/S1059-433720180000074008

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Emerald Publishing Limited

Copyright © 2018 Emerald Publishing Limited


Introduction

My dear friend Kwasi, who was born and raised in Kumasi, Ghana, has always been a strong supporter of former US President George W. Bush. His admiration of President Bush ran so deep that, many times, he would accentuate his point of view by ending it with one of Bush’s many aphorisms. Most of the time this worked just fine; however, in some instances, Kwasi didn’t always understand the duality of words involved with the aphorisms or the cultural context behind them. This led to some acutely comical moments. He once made an impassioned statement to an audience of friends, which he ended with, “I won’t allow that. It’s not going to happen… not on my clock!” Kwasi didn’t realize the error in his statement until, after we all stopped laughing, we pointed out that “clock” and “watch” were not interchangeable in this particular instance. While it made for a memorable moment, the implications of a linguistics or cultural faux pas can have far more serious consequences than the embarrassment my friend experienced, sometimes even leading to civil and/or criminal liability.

Colloquial Speech Misunderstood

The case of Jeffrey Isham is a prime example of how one’s vernacular can be misconstrued and cause unintended consequences:

ABF Freight Systems (“ABF Freight”) employed Isham as a truck driver. On January 8, 1999, Isham placed a telephone call to work and told his supervisor [that] he would not be able to arrive at work because of hazardous weather and road conditions. [His supervisor] informed Isham that the highway conditions were improving and that he expected Isham to report to work later that same day. Isham took exception with [the supervisor’s] response, and an argument developed as a result. During this verbal altercation, and according to [the supervisor], Isham stated that if he was reprimanded for missing work that day, he would “have his lawyers sue us and he would fire on everyone here.” Isham reportedly uttered a similar statement to [the union steward], who stated that Isham told him that “if he [Isham] were to receive a warning letter for missing work that he would have his lawyer come here to work and fire on [everyone] who works here.” (Com. v. Isham, 2003)

Following the above-described incident, Isham’s employment with ABF Freight was terminated. Additionally, the branch manager of ABF Freight’s Lexington office filed a criminal complaint for terroristic threatening against him ( Com. v. Isham, 2003).

I spoke with attorney Robert Abell who served as counsel for Mr. Isham in the criminal and civil litigation that ensued. There had been a tumultuous relationship between Mr. Isham and ABF Freight ever since Mr. Isham secured a workers’ compensation award based on injuries sustained while working for the company. According to Mr. Abell, an employee of ABF Freight was so skeptical of Mr. Isham’s claims that he suggested the company pursue prosecution of Mr. Isham for perjury based on his testimony before the administrative law judge who awarded him the workers’ compensation benefits. Ultimately, the company did not contest the award and Mr. Isham continued his employment with the company. Mr. Abell advised that these events laid the foundation for the interactions which led to the criminal charges against Mr. Isham and the civil suit he ultimately filed against ABF Freight. Mr. Abell also explained that Mr. Isham was from rural Washington County in Kentucky, where the vernacular differed quite a bit from the more urban Lexington, KY, location of ABF Freight. Mr. Isham’s words were only meant to express that he would hire an attorney to sue on his behalf because of the perceived harassment he had been experiencing (R. Abell, personal communication, March 5, 2016).

The criminal case against Mr. Isham for misdemeanor terroristic threatening worked its way through the appellate process. Initially, Mr. Isham filed a motion to dismiss the charges against him in the Fayette District Court:

The district court sustained Isham’s motion and dismissed the complaint with prejudice. The district court further found that Isham “expressed, albeit in a colloquial fashion, a threat to hire a lawyer and take legal action against his employer, ABF Freight.” The same court then determined that this was nothing more than a threat to retain an attorney and commence legal action, and as a matter of law, did not constitute terroristic threatening. ( Com. v. Isham, 2003)

The Commonwealth appealed this decision to the Fayette Circuit Court, then to the Kentucky Court of Appeals, and ultimately to the Supreme Court of Kentucky. The Supreme Court of Kentucky held that the district court simply lacked the authority to dismiss the complaint prior to trial based on Kentucky’s rules of criminal procedure; consequently, such dismissal was an abuse of discretion on the part of the district judge ( Com. v. Isham, 2003).

The terroristic threatening charge was ultimately tried to a jury. Mr. Abell did not call an expert witness to testify as to the colloquial dialect of Mr. Isham’s home county. He was, however, able to establish the meaning of Mr. Isham’s words through the testimony of lay witnesses. Mr. Abell explained to the jury that his client’s language was only meant to convey that he would take legal action against the company if he needed to do so. He also argued that the Commonwealth failed to prove the elements necessary to substantiate a charge of terroristic threatening under Kentucky law (R. Abell, personal communication, March 5, 2016). The relevant part of the statute reads that: “a person is guilty of terroristic threatening in the third degree when he threatens to commit any crime likely to result in death or serious physical injury to another person or likely to result in substantial property damage to another person…” (Ky. Rev. Stat. Ann., 2001).

When the case was submitted to the jury for deliberations, Mr. Abell went outside for a smoke break. Before he could finish his cigarette, the bailiff came outside and asked him to return to the courtroom – a verdict had been reached. It took the jury under five minutes to find Mr. Isham “not guilty” of the charge of terroristic threatening (R. Abell, personal communication, March 5, 2016).

Mr. Isham faced a punishment of up to 365 days in jail had he been convicted of the charge against him. Although he was ultimately acquitted, he still had to endure multiple appeals and a trial on the issue. The jury in this case only had to decide the intentions behind Mr. Isham’s words. Things can become more complicated when evaluating the actions of a defendant, especially when those actions deviate from the cultural norms understood by a jury of his or her “peers.”

The Constitutional Right to a Jury of Your Peers

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. (US Const. amend. VI)

For over a century the Supreme Court of the United States has held that, under the Sixth Amendment, “the very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds” ( Strauder v. State of West Virginia, 1879). Years later, the Court also held that, “the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial” ( Taylor v. Louisiana, 1975). The US Constitution does not guarantee one the right to a jury who shares a common culture, race, religion, gender, sexuality, etc. However, when the actions of the criminally accused fail to conform to a set of norms that are held by the “peers” making up the jury, this can cause problems. Trial attorneys seek to connect with their juries, but more importantly, they need their juries to connect and identify with their clients. This can be a difficult task to accomplish when dealing with issues of culture and social norms. We must consider the best ways to educate the trier of fact on cross-cultural issues and how we can do so within the confines of the law.

Culture and the De Minimis Standard

One of the most interesting cases I read in law school was that of Mohammad Kargar. The facts of the case created such a legal conundrum that it is not easily forgotten:

On June 25, 1993, Mohammad Kargar and his family, [Afghani] refugees since approximately 1990, were babysitting a young neighbor. While the neighbor was there, she witnessed Kargar kissing his eighteen-month-old son’s penis. When she was picked up by her mother, the girl told her mother what she had seen. The mother had previously seen a picture of Kargar kissing his son’s penis in the Kargar family photo album. After her daughter told her what she had seen, the mother notified the police. [A] sergeant with the Portland Police Department went to Kargar’s apartment to execute a search warrant.… The picture of Kargar kissing his son’s penis was found in the photograph album. Kargar admitted that it was him in the photograph and that he was kissing his son’s penis. Kargar told [the sergeant] that kissing a young son’s penis is accepted as common practice in his culture. Kargar also said it was very possible that his neighbor had seen him kissing his son’s penis. Kargar was arrested and taken to the police station.

( State v. Kargar, 1996)

Mr. Kargar opted to try his case to the bench rather than to have a jury trial. Prior to trial, Kargar moved for a dismissal of the case pursuant to Maine’s de minimis statute. The term de minimis is defined as: “1. Trifling; minimal. 2. (of a fact or thing) so insignificant that a court may overlook it in deciding an issue or case” (Garner & Black, 2009, p. 496). During the hearing, the court was presented with a great deal evidence in support of Mr. Kargar:

The de minimis hearing consisted of testimony from many Afghani people who were familiar with the Afghani practice and custom of kissing a young son on all parts of his body. Kargar’s witnesses, all relatively recent emigrants from Afghanistan, testified that kissing a son’s penis is common in Afghanistan, that it is done to show love for the child, and that it is the same whether the penis is kissed or entirely put into the mouth because there are no sexual feelings involved. The witnesses also testified that pursuant to Islamic law, any sexual activity between an adult and a child results in the death penalty for the adult. Kargar also submitted statements from Professor Ludwig Adamec of the University of Arizona’s Center for Near Eastern Studies and Saifur Halimi, a religious teacher and Director of the Afghan Mujahideen Information Bureau in New York. Both statements support the testimony of the live witnesses. The prosecution did not present any witnesses during the de minimis hearing. Following the presentation of witnesses, the court denied Kargar’s motion to dismiss and found him guilty of two counts of gross sexual assault.

Maine’s de minimis statute provides, in pertinent part:

1. The court may dismiss a prosecution if, … having regard to the nature of the conduct alleged and the nature of the attendant circumstances, it finds the defendant’s conduct:

A. Was within a customary license or tolerance, which was not expressly refused by the person whose interest was infringed and which is not inconsistent with the purpose of the law defining the crime; or

B. Did not actually cause or threaten the harm sought to be prevented by the law defining the crime or did so only to an extent too trivial to warrant the condemnation of conviction; or

C. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in defining the crime. ( State v. Kargar, 1996)

Kargar asserted that the court erred as a matter of law because it found culture, lack of harm, and his innocent state of mind irrelevant to its de minimis analysis. The appellate court agreed that this constituted reversible error on the part of the lower court and ordered that the judgments be vacated and the case remanded with instructions to enter an order granting the defendant’s motion to dismiss pursuant to the state’s de minimis statute ( State v. Kargar, 1996).

Kargar’s counsel choose to put on his cultural defense through the presentation of live, lay witnesses and through the submission of the written statements of experts regarding Afghani practices. Although Mr. Kargar was initially found guilty of the charges against him, the cultural evidence submitted on his behalf created a record that was critical to having his conviction overturned on appeal.

The Mens Rea Requirement

It is important to note that Maine’s sexual assault statute that was used to charge Mr. Kargar had no mens rea (state of mind) requirement. The appellate court’s analysis of this was thorough:

In order to determine whether this defendant’s conduct was anticipated by the Legislature when it defined the crime of gross sexual assault it is instructive to review the not-so-distant history of that crime. 17-A M.R.S.A. § 253(1)(B) makes criminal any sexual act with a minor (non-spouse) under the age of 14. A sexual act is defined as, among other things, “direct physical contact between the genitals of one and the mouth … of the other.” 17-A M.R.S.A. § 251(1)(C)(1) (Supp.1995). Prior to 1985 the definition of this type of sexual act included a sexual gratification element. The Legislature removed the sexual gratification element because, “given the physical contacts described, no concern exists for excluding ‘innocent’ contacts.” L.D. 1386, Statement of Fact (112th Legis.1985). Thus, the 1985 amendment to section 251(1)(C) illuminates the fact that an “innocent” touching such as occurred in this case has not forever been recognized as inherently criminal by our own law. The legislature’s inability to comprehend “innocent” genital-mouth contact is highlighted by reference to another type of “sexual act,” namely, “[a]ny act involving direct physical contact between the genitals … of one and an instrument or device manipulated by another.” 17-A M.R.S.A. § 251(1)(C)(3) (Supp.1995). The Legislature maintained the requirement that for this type of act to be criminal it must be done for the purpose of either sexual gratification or to cause bodily injury or offensive physical contact. Its stated reason for doing so was that “a legitimate concern exists for excluding ‘innocent’ contacts, such as for proper medical purposes or other valid reasons.” L.D. 1386, Statement of Fact (112th Legis.1985). ( State v. Kargar, 1996)

The appellate court further opined that, “the Legislature removed the sexual gratification element previously contained within the definition of a sexual act because it could not envision any possible innocent contacts, [given] the physical contacts described” ( State v. Kargar, 1996). In virtually every case the assumption that a physical touching of the mouth of an adult with the genitals of a child under the age of 14 is inherently harmful is correct. This case, however, was the exception that proved the rule ( State v. Kargar, 1996).

The trial court found there was no sexual gratification involved. There was no victim impact. The trial court additionally recognized that the conduct for which Kargar was convicted occurred in the open, with his wife present, and noted that the photograph was displayed in the family photo album, available for all to see. The record seemed to substantially reflect that there was nothing sexual about Kagar’s contact with his son. In fact, the trial judge expressly recognized that if the prosecution were required to prove a purpose of sexual gratification it “wouldn’t have been able to have done so” ( State v. Kargar, 1996). I agree. Had Mr. Kagar’s actions occurred in Maine’s neighboring state of New Hampshire, justice would have required a directed verdict on the matter at the close of the prosecution’s case. New Hampshire’s sexual assault statute contains a mens rea requirement, which reads:

For the purpose of this paragraph, “sexual contact” means the intentional touching of the person’s sexual or intimate parts, including genitalia, anus, breasts, and buttocks, where such contact, or the causing of such contact, can reasonably be construed as being for the purpose of sexual arousal or gratification of the person in the position of authority, or the humiliation of the person being touched. (N.H. Rev. Stat. Ann., 2011)

Under the New Hampshire statute, the prosecution in the Kagar case would not have been able to prove the gratification element necessary to secure a conviction.

The Cultural Anthropologist as an Expert Witness

One of my most memorable cases as a public defender involved a native-born Mexican man residing in a rural area of Kentucky who was charged with several counts of sexual abuse for allegedly touching the breasts of his adolescent stepdaughter. The stepdaughter alleged that the fondling occurred while the stepfather lay in bed with her; however, her half-brother, the defendant’s biological child, was also in the bed with the two. My client maintained that he never purposefully touched his stepdaughter’s breasts; however, he did say that it was possible that he may have brushed against her breasts by accident while embracing her and his son while they were all in the bed together. I found the fact that my client slept in a bed next to an adolescent female he was not related to by blood to be a challenging detail to overcome. The client explained this behavior as being completely acceptable in his culture; however, the jury hearing his case would not share that same culture. It would be this same jury who would decide if the contact was sexual in nature as the Commonwealth alleged, or a mere accidental touching as the result of a father figure holding his stepdaughter and biological son while sleeping in the same bed.

The bad news for my client was that Kentucky’s sexual abuse statute had no mens rea requirement (Ky. Rev. Stat. Ann., 2008). The good news, however, was that the United States Supreme court has recognized that the prosecution must generally prove that the defendant had a “guilty mind” before he or she can be found guilty of the offenses lodged against him or her. Specifically, the high court has held:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone’s sweeping statement that to constitute any crime, there must first be a “vicious will.” ( Morissette v. U.S., 1952)

Another issue I would encounter would be that unlike the case of Mohammad Kargar, my client had no family, other than his young son, in the United States whom I could call as lay witnesses to explain that his behavior was acceptable in his culture. Knowing this, I sought out a cultural anthropologist to assist me as an expert witness in explaining this variation in culture. In my quest to find the right cultural anthropologist, I spoke to various scholars across the region. Ultimately, I decided to retain the services of Dr. Leila Rodriguez given her previous work, the high level of praise she received from her colleagues, and that she was employed as a professor at a nearby tier I research institution. Location would be a key factor given that whoever I retained would need to visit with the client in jail multiple times. Dr. Rodriguez decided that the best way to address the question of if my client’s beliefs were shared by those of his cultural group was to employ cultural consensus analysis. She had three specific goals in employing this technique: (1) to determine if there is a cultural agreement over parent–child co-sleeping behavior; (2) to compare the defendant’s responses to those of his cultural groups; and (3) to analyze the core cultural beliefs on co-sleeping behavior (Rodriguez, 2014).

Dr. Rodriguez developed a survey of 25 questions to study two samples of people: one group that self-identified as Mexican, and another group that self-identified as Caucasian or white American. In recalling her work on the case, Dr. Rodriguez wrote:

The questionnaire I employed included a set of 24 questions that gauge respondents’ beliefs about the appropriateness of bed-sharing behavior of parents and stepparents with children of the same and opposite sex as them, and of different ages: 5, 10, and 15 year olds. I included a final 25th question that measures whether it is appropriate for a stepfather to share the bed with a young stepdaughter if also a younger biological son is present. I added this question because the defendant mentioned during my interview with him that this was the scenario when he shared the bed with his stepdaughter, and this is in part why he thought at the time that it was not improper.

Including the defendant, I gave out the questionnaire to a sample of 25 Mexicans and 25 white Americans. I sampled both Mexicans and white Americans in public spaces and places of employment. In cultural consensus analysis, the effect of sample size on the validity of the results depends on the indicator of group agreement regarding the topic measured. A sample size of 25 for both groups was sufficient to place the validity of the results at about 95 percent for the Mexican sample and between 95 percent and 99 percent for the white American sample (see Weller, 2007; Weller & Romney, 1988).

I based my analysis on three values, calculated using UCINET2 software:

  • Group agreement: The extent to which members of each group overall agree on the appropriateness of co-sleeping behavior. This is measured by two indicators. The Eigen ratio is a number that indicates that there is one general response pattern to the questionnaire, and therefore the group can be thought of as constituting a single culture. The higher this value, the more uniform the responses are, and the higher the overall agreement in the group. The average competency score is a direct measure of the level of agreement in the data. Higher scores indicate more cohesive beliefs in the group.

  • Individual competence scores: For each person in the sample, their overall score can be compared to the average score of the group. Higher scores indicate that the individual thinks most similarly to the group. Lower scores indicate variability from the group norm. I was interested only in the defendant’s competence score.

  • Correct answers: The most correct answer to each question according to the group.

    For the analysis, in addition to my personal experience, I consulted the software’s interpretation of the results and a Weller (2007) journal article that aids in result interpretation. I also consulted with a colleague who has published work employing cultural consensus analysis. While it is normal for researchers to check their results and interpretation with colleagues, I was again especially careful because these results might end up in court. In the peer review process of academic publications, we strive to publish accurate information. If we don’t we risk being called out on it by reviewers, not getting published, and even developing a reputation as a sloppy researcher. In this case, I felt additional pressure to “get it right”; I pictured myself during cross-examination being questioned by the prosecutor about careless work, and I did not like it one bit! More importantly, I did not want the decision about the defendant’s guilt or innocence to be shaped by findings about which I did not feel confident. Ultimately, my findings revealed mixed results. White Americans agreed more with each [other] about what constitutes appropriate parent–child co-sleeping behavior than Mexicans did. The defendant’s cultural competence score was lower than his group average, which suggests that his beliefs did not match as closely [with] the beliefs of the rest of the group. Overall agreement within this group was less uniform, so the defendant’s lower competence score does not necessarily mean his beliefs completely deviated from the groups’ norm. Finally, neither group was particularly accepting of a stepfather co-sleeping with his 10-year-old stepdaughter, but both groups found this more acceptable when a young biological son is also present in the bed. For white Americans, it became twice as acceptable, and, for Mexicans, three times as acceptable. I wrote my report knowing that one of these findings (lower individual competence score) was not particularly supportive of his defense, but others (less uniform beliefs overall among Mexicans and increased support for the co-sleeping behavior in the presence of another child) seemed to boost it.

The Process of Qualifying an Expert Witness

Ultimately, the case was settled by way of a plea deal prior to trial, which included a plea to an amended charge containing no sexual element. However, it is important to discuss how this case would have proceeded through the pretrial litigation phase and trial had it not settled. While I was able to make a compelling ex parte showing (for funding purposes) to the judge that I needed to retain the services of a cultural anthropologist to effectively represent my client, that alone would not guarantee that the testimony would be allowed at trial. The next step would be to have the court “qualify” Dr. Rodriguez as an expert witness:

Faced with a proffer of expert scientific testimony, the trial judge must make a preliminary assessment of whether the testimony’s underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate.

Throughout, the judge should also be mindful of other applicable rules. ( Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993)

Had we reached this point in the process of the criminal litigation, the Commonwealth would have filed a Daubert motion in limine to question the methods used by Dr. Rodriguez and her level of expertise. These hearings can become quite contentious, as the qualification or disqualification of an expert can make or break a case on either side of the bar. At this hearing, I would have had Dr. Rodriguez testify as to her educational background, professional work, and the methodology she employed. The hearing could take hours, and the prosecutor would try to establish an issue with the reliability of the methods used and its relevance to the ultimate issue at hand: Did the defendant touch his stepdaughter in a sexual manner? The prosecutor might have even secured his own expert to refute the findings, turning the hearing into a battle of the experts. The trial judge is to act as the gatekeeper and determine if either side is attempting to introduce “junk science.” The trial judge is also the one to decide the issue of relevancy. For example, Dr. Rodriguez may have been allowed to testify as to the results of the cultural consensus analysis based on her training as a cultural anthropologist; however, the judge would not have allowed her to testify as to the defendant’s state of mind because she has no formal training in psychology.

The work of Dr. Rodriguez was critical in securing a plea-bargain to an amended, non-sex offense for my client. Had I relied solely on the testimony of the defendant or other lay witnesses regarding the cultural norms my client was accustomed to, the prosecutor may not have been as compelled to amend the charges, knowing a jury would likely not give such testimony the same weight of an expert given the nature of the allegations.

It is also important to note that had my client been tried and convicted on the original sexual abuse charges, I would have been able to continue on with a cultural defense at sentencing. Even with a guilty verdict, the testimony of Dr. Rodriguez could still be important. In a case of “he said she said,” residual doubt in the mind of jurors may still linger during the sentencing phase of the trial. In Kentucky, the jury sets the sentence for a defendant after the guilt/innocence phase of trial. Under state law, a defendant may present mitigating evidence in support of his or her argument for a lesser sentence ( Reed v. Com., 2013). The continuation of a cultural defense during sentencing could mean the difference between the defendant receiving the minimum or maximum sentence allowed. Although not directly applicable to this case, it is also important to note that a cultural defense can also affect a jury’s verdict if the charge against the defendant contains varying degrees of the offense. Intentional conduct is considered more egregious than wanton, reckless, or negligent conduct. The latter three states of mind are generally found as lesser included versions of an offense, carrying a lower penalty. The most common example of this is a defendant being charged with murder and a jury finding him or her guilty on a lesser included charge of manslaughter because the defendant did not have the requisite intent necessary to substantiate a guilty verdict for the charge of murder.

Defining the Limits of the Cultural Defense

There is much disagreement among legal scholars as to how much weight a defendant’s cultural background should be given. Many statutes have varying degrees of criminal offenses, with intentional conduct being the most egregious (and carrying the heftiest penalty) and lesser offenses only requiring that the defendant acted wantonly, recklessly, or even negligently. Some argue that cultural issues are more appropriately presented as mitigating evidence to increase the chance of a finding of a lesser offense, as such evidence can go to mens rea. This group of practitioners and scholars also support its use during the penalty phase of bifurcated proceedings to support an argument for a less harsh sentence. Almost anything about a defendant’s life can be used for mitigation purposes, thus, when used in this way, there is no need for a formal recognition of a cultural defense. However, sentencing is generally a discretionary procedure, and some find it ironic to leave the cultural defense to processes that have traditionally been biased against the very groups that the defense is intended to benefit. As such, some argue that cultural defenses should be given formal recognition during the guilt/innocence phase as a partial or full excuse, which would allow for specific language about the defense to be included in the jury instructions.

Both American and British courts have been largely unwilling to allow variations between a defendant’s culture and her society’s majority culture to constitute an independent, substantive defense in criminal trials (“The cultural defense in the criminal law,” 1983). “The Cultural Defense in the Criminal Law,” a piece that appeared in the Harvard Law Review in 1983, opined that the principles that justify a cultural defense outweigh the arguments against it.

The article refers to two factors in favor of a formal cultural defense within the substantive law: individualized justice and cultural pluralism. As to individualized justice, the argument is made that in the context of criminal law, the ultimate aim of individualized justice is to tailor punishment to fit the degree of the defendant’s personal culpability; therefore, fairness to the individual defendant suggests that ignorance of the law ought to be a defense for persons who were raised in a foreign culture. Next, it is argued that an ordinarily law-abiding person raised in a foreign culture may have committed a criminal act solely because the values of her native culture compelled her to do so – mere awareness that her act is contrary to the law may not be enough to override her adherence to fundamental cultural values (“The cultural defense in the criminal law,” 1983). The article goes on to state:

Laws are more effective in commanding obedience when individuals internalize the underlying norms to the point where they believe that the law embodies morally correct values. A society’s socializing institutions not only make its members aware of its norms, but also instill in its people a sense that they are morally obligated to abide by their culture’s norms. Thus, persons raised in other cultures, who are subject to influences that inculcated in them a different set of norms, will likely feel morally obligated to follow those norms. Once norms have acquired this moral dimension, conformity with conflicting laws becomes more difficult. For this reason, a person’s cultural background represents a relevant individual factor that a just legal system should take into account. (“The cultural defense in the criminal law,” 1983)

The focus on cultural pluralism as a basis for a formal cultural defense is rooted in America’s designation as a “melting pot” of cultures… a title we wear proudly. According to the article, by judging each person according to the standards of her native culture, the principle of individualized justice preserves the values of that culture and thus maintains a culturally diverse society. There is the belief that the cultural defense is integral to the United States’ commitment to pluralism, as it helps maintain a diversity of cultural identities by preserving important ethnic values (“The cultural defense in the criminal law,” 1983).

This article from the Harvard Law Review is hardly the only piece written in support of formalizing the cultural defense within substantive law. The Cultural Defense, written by Alison Dundes Renteln and published in 2004, is the first book-length piece to address how a defendant’s cultural background should be considered in the context of presenting a defense during trial proceedings. The author believes that the cultural defense should be given formal recognition, even going as far as arguing that the Equal Protection Clause of the United States Constitution demands such recognition. For example, she believes that if members of the majority culture can reduce a charge of murder to manslaughter by demonstrating adequate provocation, but defendants from other cultures fail because they cannot show that a so-called objective reasonable person would have been provoked by what counts as an insult in his culture, it runs afoul of our constitutional protections. If defendants similarly situated can never win a partial excuse by invoking a provocation defense, she believes this arguably constitutes a violation of equal protection. However, the true argument may lie in assessing if the defendants were truly similarly situated. The case she uses to illustrate her point is that of People v.Truillo-Garcia, in which the defendant killed another man based on that man having verbally insulted him. Both men were Mexican-American and the insult was apparently unfamiliar to the “average reasonable person” outside of the Mexican culture. At the trial, he unsuccessfully sought to raise a provocation defense. Although he could show that he had been provoked, he could not show that an “objective reasonable person” would have been provoked by the insult (Dundes Renteln, 2004). On appeal, he argued that the trial court should have applied a reasonable Mexican male standard rather than a reasonable person standard when it rejected his defense of provocation. The court on appeal declared that exclusion of cultural information was unimportant error since the cultural information the defendant sought to admit would not have been sufficient to show provocation anyway (Sacks, 1996).

I disagree with the arguments in favor of a formal recognition of cultural defenses by the courts and believe that a defendant’s cultural background is best considered in terms of arguing a defendant’s state of mind and/or for mitigation purposes. In the case in which I retained the services of Dr. Rodriguez, the defendant’s cultural background was to be used to simply explain why he was in the bed with his stepdaughter, which in and of itself would not be a criminal act, but likely would have been found to be suspect conduct by the jury given that there was no blood relationship between the two. Once that could be explained, if the jury believed he did not purposefully touch her breast or that there was no sexual element to it, the law would have required his acquittal.

Cases involving a cultural component have been resolved favorably for defendants without the use of a formalized cultural defense. Look at the case of Fumiko Kimura. Mrs. Kimura came to Los Angeles from Kyoto in 1972, at age 20. She married when she was in her early twenties; after a few years, the couple divorced. Later, she met and then married Itsuroko Kimura. Their son, Kazutaki, was born in 1980. Four years later Kimura gave birth to a daughter, Yuri. Mrs. Kimura was reportedly very introverted and had no friends. While she isolated herself at home, Mr. Kimura became involved in a sexual relationship with another woman. The relationship lasted for more than 3 years. Ten days after learning about her husband’s affair, a distraught Mrs. Kimura walked into the Pacific Ocean with her children to commit the act of oyako-shinju (joint parent–child suicide) (Pound, 1985). Her children perished, but she was saved. This Japanese practice is not generally regarded as a serious crime in Japan, where, at most, it would carry a charge of involuntary manslaughter (Sacks, 1996). According to published reports, such deaths occur frequently in Japan, for reasons ranging from poor health to money problems. “It happens many times in Japan,” said Kimura’s brother, Iwao Higa, a doctor in Tokyo (Pound, 1985). “I think it is an unhappy action, but in Japan, sometimes it is a cure. Oyako-shinju occurs in Japan because people feel that they are in a situation of losing face or that they are a burden to society,” said Yoshiko Yamaguchi, a consultant to the San Fernando Valley Japanese-American Community Center (Pound, 1985). “In such a case, suicide is acceptable,” she said. “If it’s not successful, it’s really a tragedy” (Pound, 1985). Kimura, believing herself to be a failure as a mother, a wife, and a person, probably considered oyako-shinju to be the only honorable course to take, Yamaguchi said. When police filed charges against Kimura, she did not even comprehend that she was accused of murder. She told her attorney that she thought her crime was failed suicide (Pound, 1985). The prosecutor, Louise Comar, took the position that it didn’t matter if she killed out of love or hate, expressing that no one has the right to take the life of another under these kinds of circumstances. Comar went on to express the belief that the state has the right to demand that people who live there abide by its rules. Many letters were written to the prosecutor from Japanese-Americans seeking to explain oyako-shinju. Many signatures were garnered in support of Mrs. Kimura. Ultimately, the charge was reduced to voluntary manslaughter for which Fumiko Kimura received a 1-year sentence (time served awaiting trial) and 5 years of probation with mandatory psychological counseling. (Goel, 2004). An equitable resolution was achieved without a formally recognized cultural defense. In fact, as was the case with my client, the submission of the cultural information avoided a trial altogether.

Many scholars like to argue the law on the basis of morality; however, the law isn’t entirely based on morality. Indeed, sometimes the law actually rewards immoral behavior. One needs only to look at the law of adverse possession for confirmation of this proposition. Adverse possession is a doctrine in property law under which a person can acquire title to real property through the non-permissive occupation of property that is owned by someone else. If the statutory period of occupation is met along with other certain conditions, the occupier can acquire title to the property. Proponents of the law say it encourages productive use of property and discourages property owners from leaving their property unreasonably unattended to. Opponents are critical of the law for fear it will encourage illegal behavior. Additionally, laws can be procedural or administrative in nature, which do not necessarily incorporate the principals of morality. Consequently, I do not find the philosophical principles associated with moral relativism or moral absolutism to be determinative of the arguments for or against formalizing cultural defenses within the substantive law. Moral relativism holds that the truth or justification of moral judgments is not absolute, but relative to the moral standard of some person or group of persons. Sometimes moral relativism is connected with a normative position about how we ought to think about or act toward those with whom we morally disagree, most commonly that we should tolerate them (Gowans, 2015). Moral absolutism, on the other hand, is defined as the view that there is a single correct moral framework by which we can judge right from wrong. In this author’s opinion, neither view need be applied to the arguments for or against cultural defenses.

Some legal scholars and practitioners believe that the failure to formalize cultural defenses is a full display of ethnocentrism; however, I disagree as long as the cultural defense is allowed in relation to the ability to argue a defendant’s state of mind (perhaps leading to a finding of a lower degree of the offense) or for other mitigation purposes. Unfortunately, I believe that the formalizing of such a defense could lead to the essentializing of cultures. Essentialism could, unfortunately, feed into the negative stereotypes that have been perpetuated during this most recent election cycle. Immigration was a hot topic for the presidential candidates, and unfortunately, some candidates expressed very narrow, negative views about immigrants and those whose culture differs from that of the majority. According to an article run by USA Today, there has been a spike in hate harassment and hate incidents across the country in the wake of the 2016 presidential election. The Southern Poverty Law Center (SPLC), which tracks hate crimes, says it has logged more than 200 complaints since the election (figure as of November 14, 2016), and while it could not provide a figure for the average number of complaints it takes in each day, Richard Cohen (president of the SPLC) assured that the number is much larger than what is typical (Eversley, 2016). Anti-black and anti-immigrant incidents are generating the highest numbers followed by anti-Muslim incidents, Cohen said. The Council on American-Islamic Relations (CAIR) also said it has seen an increase in complaints made to its offices, so much so that it was moved to urge prayer leaders and imams [to address fears], said Ibrahim Hooper, the organization’s communications director. CAIR also said that the number of complaints demonstrate a marked increase, but just a few days out was too soon to offer details on data (Eversley, 2016). While I do not suggest that we let ignorance dictate the mechanics of our laws, it must be acknowledged that, under current conditions, allowing defendants to be held to a different standard based on variances in culture could lead to the false belief that immigrants are unchanging and incapable of following American laws. Further, it could lead to immigrants from the same country being painted with a broad brush as homogenous people, even when culture can vary significantly across a country or region. It is important to note that even if the social climate were not as it is today, I still would not advocate for a more formalized cultural defense. However, given the current climate, I believe it to be imperative that we do not codify division, which could in turn perpetuate the negative stereotypes some people hold about immigrants and others who do not share the majority’s culture.

The formalizing of a cultural defense as a full or partial excuse could lead to some very irrational results, and as such, it is best allowed in relation to a defendant’s state of mind or for other mitigation purposes. For example, if someone commits a personal crime against another person that would be acceptable in the defendant’s culture, should the victim be denied justice? Does the answer change depending on if the victim shares the minority culture? If the answer does change, is it appropriate that our courts determine the guilt of the defendant based on the culture of the victim? How long does someone have to be in the United States before he or she is expected to know what is expected of him or her from a legal standpoint? What if someone is born to immigrant parents in the United States but has been isolated from much of the American culture? Yes, each case has its own unique facts regardless of the consideration of cultural defenses; however, there must be some form of certainty for victims (as well as the community-at-large) as to how the laws will work to protect them.

A couple of ways to address clashes between law and culture in the United States would be for groups to seek out legislative exemptions or perhaps litigate the issues on the basis of religious freedom or freedom of speech when applicable. Of course, these options should only be considered when the conduct in question does not violate the rights of another person. Nevertheless, it is unacceptable to have laws in place and not apply them to certain groups of people when those laws have been broken.

Conclusion

The practice of law is an art. There isn’t just one way to do it; the craft will vary by practitioner. There are many different ways to paint a beautiful picture just as there are many ways one can tell a story. Through the presentation of evidence at trial, attorneys must carefully consider the best way to tell the client’s story. The decision to explain a client’s deviation from a community’s cultural norms through the testimony of lay witnesses or through the testimony of expert witnesses may possibly be a style choice, depending on the facts of the case. The more serious the allegations, however, the more likely it will be that the services of an expert witness will be needed. As shown with the less serious case of Jeffrey Isham, lay witness testimony can be sufficient. For my more serious felony case, securing expert assistance was vital to our defense. While the services of an expert witness may not come cheap, not retaining one could end up being a costly mistake for the defendant. An attorney should not make the mistake of failing to secure an expert witness regarding the defendant’s culture simply because the court will not allow a formal cultural defense as a full or partial excuse. Almost anything about a defendant’s life can be used for mitigation purposes; therefore, cultural information can be appropriately presented as mitigating evidence to increase the chance of a finding of a lesser offense (as such evidence can go to mens rea) or for sentencing purposes. The formalizing of a cultural defense as a full or partial excuse has the potential to lead to some very irrational results, and as such, is more appropriately utilized in relation to a defendant’s state of mind or for other mitigation purposes.

In employing a cultural defense, the mens rea of the defendant will likely be a key issue. Attorneys shouldn’t be discouraged if the charging statute does not contain a mens rea requirement; the Supreme Court of the United States has held that, generally, wrongful intent is a necessary element for proving a criminal offense. However, this doesn’t mean the defendant is completely off the hook. Many statutes have varying degrees of each criminal offense, with intentional conduct being the most egregious (and carrying heftiest penalty) and lesser offenses only requiring that the defendant acted wantonly, recklessly, or even negligently. Therefore, although the defendant may not have had a “guilty mind” per se in terms of intent to cause harm, he or she could still be found guilty of a lesser included charge requiring a less culpable state of mind.

Trials can be a gamble and they aren’t always all or nothing; however, depending on the jurisdiction, the specific statute, and the statute’s varying degrees of an offense, a defense strategy that involves the presentation of cultural information can mean the difference between a misdemeanor and a felony, can place the defendant within different sentencing ranges for a felony, can act as mitigating evidence at sentencing, or can sometimes lead to an all-out acquittal. With so many variables at play, you must simply be ready to state your case.

References

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