Criminal Defense of Immigrants


§ 3.59 (D)

Skip to § 3.

For more text, click "Next Page>"

(D)  Particular Stages of a Criminal Proceeding.  The impact of culture on different phases of a criminal proceeding has also been addressed: 

                (1)  Motions to Suppress.  Connell & Valladares, Cultural Factors in Motions to Suppress, 25 The Champion 18 (2001); Connell & Valladares, Search and Seizure Protections for Undocumented Aliens: The Territoriality and Voluntary Presence Principles in Fourth Amendment Law, 34 Am. Crim. L. Rev. 1293 (1997); Romero, The Domestic Fourth Amendment Rights of Undocumented Immigrants: On Gutierrez and the Tort Law/Immigration Law Parallel, 35 Harv. Civ. Rights-Civ. Liberties L. Rev. 57 (2000).


                (2)  Confessions.  Einesman, Confessions and Culture: The Interaction of Miranda and Diversity, 90 J. Crim. L. & Criminology 1 (1999); Einesman, Cultural Issues in Motions to Suppress Statements, in Cultural Issues in Criminal Defense 4-1 (J. Connell & R. Valladares, eds., Juris Publishing 2000); Walker, A Comparative Discussion of the Privilege Against Self-Incrimination,  14 N.Y. L. Sch. Int’l Comp. L. 1 (1993).


                (3)  Direct Examination.  Stephen A. Saltzburg, Non-English Speaking Witnesses and Leading Questions, CRIM. JUST. 37 (Summer 1998).

                (4)  Jury Selection.  Goodman, Connell & Valladares, Cultural Issues in Jury Selection, in Cultural Issues in Criminal Defense 6-1 (J. Connell & R. Valladares, eds., Juris Publishing 2000).


                (5)  Plea Bargaining.  Defendants can sometimes misunderstand the elements of the charges or the process by which rights are waived and a plea is entered resulting in an invalid plea.[184]


                (6)  Trial Defenses.  Cultural evidence should always be admissible to negate an element of the offense, such as mens rea.[185]  This is true, even where a separate “cultural defense” is not recognized, since the prosecution always has the burden of proving every essential element of the offense beyond a reasonable doubt.


                (6)  Jury Waivers.  If the defendant lacks information about the nature of a jury trial, because of unfamiliarity with the judicial process in the United States, a jury waiver may be invalid.[186]


[184] Valencia v. United States, 923 F.2d 917 (1st Cir. 1991) (holding the defendant did not understand either the elements of the charge or the complex legal questions asked of him, because of his “minimal formal education and little familiarity with the American legal system”); United States v. Leung, 783 F.Supp. 357 (N.D. Ill. 1991) (the defendant’s culture and language difficulties prevented defendants from understanding the nature of the charges or the consequences of the plea).

[185] Levine, Negotiating the Boundaries of Crime and Culture: A Sociolegal Perspective on Cultural Defense Strategies, 28 LAW & SOC. INQUIRY 39 (Winter, 2003) (distinguishing between when a defendant offers an alternative explanation of his intent vs. when he uses culture only to explain why he wanted to harm the victim, arguing that the former should be permitted); Lyman, Cultural Defense: Viable Doctrine or Wishful Thinking?, 9 CRIM. JUSTICE J. 87 (1986) (historical and recent cultural defense cases, mental state culpability, concluding that cultural defense is not a viable substantive defense); Renteln, A Justification of the Cultural Defense as Partial Excuse, 2 S. CAL. REV. OF LAW & WOMEN’S STUDIES 437 (1993) (comprehensive article discussing culture in the context of pre-existing defenses’ moral bases of punishment, including motive and intent, arguing for its acceptance in that context, and containing a near-exhaustive bibliography of other sources).

[186] Lopez v. United States, 615 A.2d 1140 (D.C. Cir. 1992) (court noted possible differences between justice system in Honduras and the United States, especially lack of jury trial there); Commonwealth v. Abreu, 463 N.E.2d 1184 (Mass. Sup. Ct. 1984) (court of appeal could not evaluate defendant’s understanding of right waived where court below asked only one question, defendant’s understanding of English was limited, and his home country may not have had jury trials).



Lower Courts of Ninth Circuit

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).


A. Renteln, Raising Cultural Defenses, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 423 (2d ed. 2007).
Alison Dundes Renteln & Marie-Claire Foblets, eds., Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense (2009).