Criminal Defense of Immigrants


§ 3.60 (A)

Skip to § 3.

For more text, click "Next Page>"

(A)  In General.  Cultural evidence can be of great assistance in mitigating a sentence.[192]  This issue often comes up in the context of a claim of ineffective assistance of counsel in failing to investigate the effect of culture on potential sentence.  “In assessing the reasonableness of an attorney’s investigation, ... a court must consider not only the quantum of the evidence already known to counsel, but whether the known evidence would lead a reasonable attorney to investigate further.”[193]  Counsel’s failure to investigate and present evidence of a defendant’s mental defect and social history can constitute deficient performance.[194]  Evidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than those committed by defendants who have no such excuse.[195] 


                In one case, a defendant had been exposed to neurotoxins during childhood and during adult life, and suffered serious additional physical abuse and head injuries. The court stated: “A little explanation can go a long way. In this case, it might have made the difference between life and death.  But, because trial counsel for Fernando Eros Caro failed to investigate and present evidence of the impact that exposure to neurotoxicants and child abuse had on his brain, the penalty phase jury was deprived of this critical explanation in determining Caro’s culpability for his crime.”[196]  The court determined that the information about the defendant’s brain damage due to exposure to neurotoxins and personal background was relevant mitigating information and should have been explained to and considered by the sentencing jury. “The omission of this evidence renders Caro’s death sentence unreliable.”[197]


                In an earlier appeal by the same defendant, the court held that an evidentiary hearing was required on whether counsel was ineffective in failing to investigate defendant’s Mexican-Yaqui heritage, reservation conditions of abject poverty, and the defendant’s role as eldest son leading to severe beatings around head and exposure to neurotoxins.[198]


[192] See Mak v. Blodgett, 970 F.2d 614, 617-618 & n.5 (9th Cir. 1992) (finding ineffective assistance of counsel in failing to investigate available cultural evidence in mitigation); People v. Alvarez, 926 P.2d 365, 411, 414 (Cal. 1996) (cultural anthropology evidence offered in mitigation of a capital sentence phase).  See Wiggins v. Smith, 539 U.S. 510 (2003).  People v. Superior Court, 7 Cal. Rptr.2d 177 (Cal. Ct. App. 1992) (upholding the grant of probation to a Korean-born naturalized U.S. citizen convicted of voluntary manslaughter where the trial court found her failure to verbalize remorse was likely the result of cultural and language barriers); People v. Chen, No. 87-7774 (Sup. Ct. N.Y. C. Dec. 2, 1988) (finding that defendant was driven to violence by Chinese values about adultery and loss of manhood and sentencing him to probation for killing his wife after she admitted having an affair).  See also United States v. Guzman, 236 F.3d 830 (7th Cir. 2001) (holding that a downward departure from the sentencing guidelines due to “cultural heritage” was unwarranted in that case but allowing that it need not hold that the guidelines “forbid consideration of ethnicity or “cultural heritage” in the sentencing decision [and that] doing so [would] exclude all possibility of consideration of cultural factors in cases that we cannot yet foresee”); United States v. Decora, 177 F.3d 676, 679 (8th Cir. 1999); United States v. Tomono, 143 F.3d 1401, 1404 and n.2 (11th Cir. 1998); United States v. Yu, 954 F.2d 951, 954 (3d Cir. 1992).

[193] Williams v. Taylor, 529 U.S. 362, 396 (2000). 

[194] California v. Brown, 479 U.S. 538, 545 (1987) (concurring opinion). 

[195] Caro v. Woodford, 280 F.3d 1247 (9th Cir. 2002).

[196] Caro v. Woodford, 280 F.3d 1247, 1257 (9th Cir. 2002).

[197] Ibid.

[198] Caro v. Calderon, 165 F.3d 1223 (9th Cir. 1999) cert. denied sub nom. Woodford v. Caro, 527 U.S. 1049 (1999).