Criminal Defense of Immigrants


§ 3.59 (E)

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(E)  Resources.  The literature is growing in this area.[187]  The best collection of materials in this area is contained in Cultural Issues in Criminal Defense, edited by James G. Connell, III and Rene L. Valladares.[188]  Chapter 7, written by Alison Dundes Renteln, is entitled, “Raising Cultural Defenses,” and discusses in general the relevance of cultural information to various criminal defenses, including excuse defenses such as insanity, the Battered Women Defense, duress, diminished capacity, and provocation as a partial excuse.  She also discusses the relevance of culture to self-defense, mistake of fact, and lack of specific intent, as well as de minimis offenses, and a formal cultural defense to child abuse offenses.  Moreover, cultural defenses have been raised with respect to the right to free exercise of religion and equal protection claims.  Professor Renteln has written a marvelous and very well-documented treatise in this area, entitled The Cultural Defense,[189] in which she conducts a detailed examination of the various areas in which cultural conflicts arise in the courtroom.


                Chapter 8, by James G. Connell, III, describes “Using Cultural Experts.”  It covers defense uses, prosecution uses, and how to find cultural experts, as well as the admissibility of cultural expert testimony under Daubert[190] and Frye.[191]

                Finally, in Chapter 12, Marcia G. Shein discusses “Cultural Issues in Sentencing,” where perhaps more than in any other area cultural issues may have a decisive impact.  There are a number of effects of culture in a criminal case that can have a mitigating effect on sentence, including the fact that the behavior may be accepted or even expected in the defendant’s culture, a cultural motive to commit the crime may be stronger in the defendant’s culture than in the dominant society, immigration consequences of a particular conviction or sentence may affect the sentence, and cultural experts may assist the court at sentencing to understand what might otherwise be seen as the defendant’s unusual behavior.  In federal sentencing, a number of the sentencing guidelines may provide an avenue for the introduction of cultural considerations into the sentencing process.

[187] DeMuniz, Application: Presiding Over Cases Involving Immigrants, in Immigrants In Courts 158 (J. Moore, ed., Univ. of Washington Press 1999).

[188] Cultural Issues in Criminal Defense (J. Connell & R. Valladares, eds., 2003). 

[189] Alison Dundes Renteln, The Cultural Defense (Oxford University Press 2004).

[190] Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 588-889 (1993).

[191] Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923).



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).