Criminal Defense of Immigrants

 

In preparing for the client interview, counsel should consider learning about the client’s culture, since that can have a large impact on counsel’s ability to communicate effectively with the client.[15]  Failure to investigate the client’s culture can prejudice the client, by missing powerful defenses or mitigation, and therefore can constitute ineffective assistance of counsel.[16]

 

            Cultural archetypes, or the “deep-seated collective attitudes and values formed by a culture,” are the “eyeglasses” through which people look at the world.  People evaluate, assign priorities, judge, and behave based on how they see life through those lenses.  Culture influences the communication process in significant ways, such as the selection of language, thinking patterns, interpretation of verbal and non-verbal cues, the role of silence in face-to-face interaction, perception of time and personal space, and concepts of respect and politeness.[17]

 

            The cultural background of individuals appearing before a court can greatly affect their ability to negotiate the judicial system, including their understanding of the operations of the court system, their beliefs regarding legal assistance, and their understanding of the court’s role and of its rulings.  There may be numerous differences between the legal systems of their home countries and that of the United States. A newcomer may not understand the concept of being sentenced to probation.  An individual from a country where either all lawyers work for the government or where legal services are available only to the wealthy may not understand the role of counsel and believe that his appointed-lawyer represents the government.[18]

Counsel may therefore want to learn how long the client has resided in the United States, how familiar the client is with United States culture, language, and religion, and the level of the client’s education and professional status.  What has the client’s experience been with the law enforcement and judicial system of his or her home country?  The United States versions?  What are the cultural customs of the client as far as nonverbal behavior is concerned, such as looking someone directly in the eye, or gestures, or the politeness of always agreeing with an authority figure, such as a lawyer, even if the truth is otherwise?  What is the cultural significance of gender?  What is the significance if the lawyer’s gender is the same as, or different from, that of the client?  Is the client more or less assimilated to United States or western culture through long residence here, or is the client more accustomed to the culture of the home country?  What are the cultural barriers to full disclosure from the client to the attorney?  How can these problems be eased by the lawyer?

 

                Counsel may want to discuss these and similar issues, before interviewing the client, with someone who has extensive experience with people from the client’s cultural background.

 

                It is very important for counsel to be exact and precise in referring to the client’s country of origin or ethnic identity, and to take pains to obtain the exact spelling and pronunciation of the client’s name.  A mistake on something as fundamental as these matters can seriously damage counsel’s relationship with the client.[19]  Remember President Reagan’s colossal blunder, when visiting Brazil, as he greeted the wonderful people of “Bolivia” in his speech.

 

                Counsel should not assume that the client shares counsel’s culture and outlook.  Misunderstandings can easily arise if counsel treats “people from different cultures as being ‘generally more similar to themselves than dissimilar.’  This behavior is termed ‘assumed similarity.’”[20]

 

                “The potential for misunderstandings, confusion, and hostility increases in the intercultural exchange.”[21]  It is possible for counsel unknowingly to trespass on a subject which is taboo in the client’s culture.  “Deponents from many cultures would find questions embarrassing if they pertain to intimacy, certain medical conditions, human anatomy, and bodily functions.  Attorneys should be aware of this possibility and prepare the deponent prior to verbalizing a sensitive question by saying, for instance, “I know that it may be uncomfortable for you to answer questions like the one I am going to ask, but I need to ask it.”[22]

 

                A client’s lack of experience with United States law enforcement or courts, or prior experience living in a totalitarian regime, can have an important impact on his or her understanding of what is going on during a law enforcement investigation or experience with the judicial system here.  These factors can be very important to understanding whether a waiver of rights, or a statement given to law enforcement agents, was voluntarily given.[23]

[15] Eades, Lawyer-Client Communication: ‘I Don’t Think The Lawyers Were Communicating With Me’: Misunderstanding Cultural Differences in Communicative Style, 52 EMORY L.J. 1109 (2003) (discussing communication between lawyers and clients of different cultures, using an Australian Aboriginal murder client as a case study, it explains sociolinguistically why the lawyers could not understand from the client she acted in self-defense in killing an abusive spouse, and gives concrete explanations of points of misunderstanding).

[16] Tomao, The Cultural Defense: Traditional or Formal? 10 GEO. IMMJGR. L. J. 241 (Winter 1996) (failure to raise cultural defense could constitute ineffective assistance of counsel; ways in which culture affects traditional state of mind defenses, policy implications).

[17] Ivanichvili, A Lawyer’s Guide to Cross-Cultural Depositions, The Champion 40 (Nat’l Ass’n of Criminal Defense Lawyers, Sept.-Oct. 2004).

[18] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 7-1 (P. Goldberg & C. Wolchok, eds., 2004).

[19] Ivanichvili, A Lawyer’s Guide to Cross-Cultural Depositions, The Champion 41 (Nat’l Ass’n of Criminal Defebnse Lawyers, Sept.-Oct. 2004).

[20] Ivanichvili, A Lawyer’s Guide to Cross-Cultural Depositions, The Champion 42 (Nat’l Ass’n of Criminal Defebnse Lawyers, Sept.-Oct. 2004) (footnotes omitted), citing Haskins, Pitfalls in Intercultural Communication for Lawyers, 16 Trial Diplomacy J. 71, 73, 74 (1993).

[21] Kessler, The Lawyer’s Intercultural Communication Problems with Clients from Diverse Cultures, 22 Beverly Hills B.J. 251, 257 (1988).

[22] Ivanichvili, A Lawyer’s Guide to Cross-Cultural Depositions, The Champion 42 (Nat’l Ass’n of Criminal Defense Lawyers, Sept.-Oct. 2004).

[23] E.g., United States v. Yunis, 859 F.2d at 964-966 (D.C. Cir. 1988) (“[I]t is unclear what weight should be given to an alien’s unfamiliarity with our legal culture in evaluating the validity of that alien’s waiver. . . .  However, an individual’s foreign background seems especially pertinent to the knowing quality of a waiver”); United States v. Fung, 780 F.Supp. 115, 116 (E.D.N.Y. 1992) (court considered weak language skills and ignorance of United States legal system in evaluating waiver); Peterson v. State, 562 P.2d 1350, 1362-1363 (Alaska 1977) (court considered claim that “24-year-old Aleut Native, born and raised in Chignik, Alaska, and with only third-grade reading skills, could not knowingly and intelligently waive his right to counsel”); People v. Jimenez, 863 P.2d 981, 984-985 (Colo. 1993) (court considered the defendant’s weak knowledge of English or Spanish and that his native tongue “does not have words for concepts such as ‘rights’”); Liu v. State, 628 A.2d 1376, 1380-1381 (Del. 1993) (court recited general truth that “[c]ultural heritage clearly has some impact upon an individual’s full awareness of his or her rights and necessarily assumes a role in the ‘totality of the circumstances analysis’ in considering suspect’s claim that his “Chinese heritage . . . demand[ed] unquestioning cooperation with authority figures”).