(A)  In General.  Cultural defenses are increasingly being recognized as important factors in evaluating a defendant’s guilt or innocence and relative culpability for an offense.  “A cultural defense will negate or mitigate criminal responsibility where acts are committed under a reasonable good-faith belief in their propriety, based upon the actor’s cultural heritage or tradition.”[173]

 

                When a client comes from a culture different from the dominant culture in the United States, the various decisionmakers in a criminal case, the prosecutor, the court, the jury, and even defense counsel, often have great difficulty in fully understanding the client’s point of view without expert help in learning about the client’s culture.  For example, a jury had great difficulty understanding that a Mexican citizen would accept the job of driving someone else’s car across the border for a small amount of money without suspecting criminal activities were afoot, but acquitted the defendant when an expert testified that the Mexican culture emphasized trust and not being suspicious and that he had conducted an experiment in which many randomly picked Mexicans agreed when the expert asked them to do so.[174]  The admissibility of the testimony of a cultural expert may be debatable,[175] but at a minimum, defense counsel should ensure that counsel understands the client’s position fully.  In fact, defense counsel may be held to render ineffective assistance of counsel for failure to consult a cultural expert.[176]

[173] Lyman, Cultural Defense: Viable Doctrine or Wishful Thinking?, 9 Crim. Just. J. 87, 88 (1986).

[174] Charles Sevilla, Preface, in Cultural Issues in Criminal Defense, xxii (J. Connell & R. Valladares, eds., 2003). 

[175] United States v. Ruelas-Altamirano, 463 F.2d1197 (9th Cir. 1972).

[176] See Mak v. Blodgett, 754 F.Supp. 1490, 1499 (W.D. Wash. 1991), aff’d and remanded without opinion, 972 F.2d 1340 (9th Cir. 1992)(ineffective counsel for failure to present mitigating testimony of cultural experts on the effects of cultural conflicts on a young Chinese immigrant including an apparent lack of emotion); Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476, 481-82 (9th Cir. 1991) (approving admissibility of testimony of cultural expert on gender roles among Hmong people of Southeast Asia).  See generally Timothy P. O’Toole, Appeal and Post-Conviction Review, § 13.3(c) in Cultural Issues in Criminal Defense (J. Connell & R. Valladares, eds., 2003), concerning ineffective assistance claims based on failure to raise a cultural issue at trial. 

Lower Courts of Ninth Circuit

CULTURAL ISSUES
United States v. Zeng, __ F.Supp.2d __, 2007 WL 902380 (N.D.Cal. Mar, 22 2007) (granting motion to withdraw guilty plea where Rule 11 violation occurred because defendant was prevented, through cultural mores, from interrupting his attorney during the guilty plea phase, and defendant did not understand the nature of the charges against him, or the immigration consequences thereof, until he was later able to read a Chinese translation of the plea agreement).

Other

CRIMINAL DEFENSE - INVESTIGATION
A. Renteln, Raising Cultural Defenses, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 423 (2d ed. 2007).

CRIM DEF - BIBLIOGRAPHY CRIME DEF - CULTURAL DEFENSES
Alison Dundes Renteln & Marie-Claire Foblets, eds., Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense (2009).