Cultural Considerationsin the Courtroom

Rene Valladares, Federal Public Defender, District of Nevada

Current Statistics

• U.S. Total Population = 319 million

• Over 13% of the population is foreign born.

• Over 30% of Americans identify as a race or ethnicity other than white.

Future Projections

• The U.S. Census Bureau projects:

– Increase in the percentage of foreign born Americans compared to native born Americans

– Increase in racial and ethnic diversity among native born Americans

• As the U.S. becomes increasingly more culturally and ethnically diverse, understanding how to address various cross-cultural considerations will gain importance in both criminal and civil legal practice.

Cultural Competence

• Occurs when individuals use awareness, knowledge, and understanding in order to value cultural diversity, and promote fairness, justice, and community confidence.

Development

• Cultural competence is not innate.

• Cultural competence is not stagnant: it can be developed.

• People can learn and grow.

• Organizations can progress, too.

Cultural Considerationswith Clients

• What is culture?– Culture is a community’s shared set of norms,

practices, beliefs, values, traditions, customs, history, and means of expression that affects how we analyze, judge, ad interpret information, behavior, and perceptions about behavior.

Cultural Considerations with Clients

• What is culture related to?– Identity– Broad: race, gender, language, religion,

nationality, ethnicity, abilities, sex, sexual orientation, profession, etc.

– Deep: visible (skin tone, religious symbols) & invisible (values, beliefs) dimensions.

Culture Shapes Behavior

• Communication Style• Interactions with Others• Decision-Making Paradigms

– Ex: Individual vs. Family

Cultural Collisions• Occur when individuals or groups with

different traditions, world views, values, and/or languages come together in a situation in which neither side is able to view the situation from the perspective of the other.

Cultural Collisions

• Sexual Roles• Dress/Attire• Punctuality • Authority Figures• Punishment• Body Language• Communication Style

• Role of the prosecutor, judge, and defender

• Cultural blindness vs. cultural competence

Linguistic Diversity

• English is spoken by 80.38% of Americans over the age of 5.

• Languages other than English are spoken by 19.62% of Americans.

• Particular language prevalence will vary among regions in the U.S.

Source: Modern Language Association, American Community Survey (using data collected from 2000, 2010 Census).

Cross-Cultural Communication

• Language isn’t the only barrier to effective cross-cultural communication.

• Professionals must also be cognizant of:– Assumed Similarity– Nonverbal Communication– Tendency to Evaluate– Preconceptions and Stereotypes

Assumed Similarity

• The assumption that:– Words and gestures have a set meaning; and– The message being sent is effectively received.

Modes of Communication

• Telling (ineffective)

• Asking (obtain information, validate)

• Showing (increases retention, understanding)

• Listening (helps form good relationships, encourages others to be open with us)

Nonverbal Communication

• Verbal:– Word choice– Content of speech– 7% influence on the

message received

• Nonverbal:– Facial posture (eye

contact, facial expressions, posture, gestures, proximity)

– Vocal (tone, volume, pitch, voice quality, rate of speaking)

– 93% influence on the message received

Verbal Communication

• Words with multiple meanings:– 400 common words

have 14,000 different meanings

– Nuance, idioms, and slang (use being particularly hazardous)

• Assumptions about:– Accent (intelligence)– Pacing/timing

(aggressiveness, intelligence)

When is an interpreter necessary?

• A client’s limited or lack of English proficiency may require the use of an interpreter.

• It is imperative that a client understand the legal terms relevant to his or her situation.

• When uncertain, some considerations may provide assistance: – Ask questions that

require full-sentence answers

– Avoid easily answerable questions (“Where do you live?”)

– Ask the client to repeat what you have said in his or her own words.

Barriers to Honest Communication

• An existing relationship between the client and interpreter may result in abridged communication.

• Familial relations may bring power and communication dynamics.

• Community relations may bring a fear that confidential information will be shared with the community.

Tips for working with an interpreter

• Speak with the interpreter before the scheduled meeting.

• Send a summary of the issues and parties involved to the interpreter before the proceedings.

• Speak directly to the parties and use the second person.

• Speak slowly and be clear about what you need.

Bridging Cross-Cultural Barriers

• Clarify• Be self-aware• Do not act on

stereotypes• Listen with respect• Increase culture-

specific awareness

• Treat each person as a unique individual

• Continue to learn

Bridging Cross-Cultural Barriers

• Tolerate ambiguity• Establish trust• Show concern and

empathy• Be aware of non-verbal

cues

• Listen for hidden meanings

• Avoid double-entendre• Be patient – with both

yourself and others

Why is cross-cultural communication so challenging?

• Culture shapes how we think – how we see, hear, and interpret the world around us.

• Multiple meanings – the same words can mean different things to different people from different cultures.

• Language interpretation – where interpretation must be used, the potential for misunderstanding increases.

Cultural Considerations

• When communicating with a cross-cultural client, there are three important constraints to be aware of:

– Cognitive Constraints– Behavior Constraints– Emotional Constraints

Cognitive Constraints

• Frames of reference or world views that provided backdrops against which new information is compared/inserted.

Behavior Constraints

• Each culture has rules about proper behavior which affect verbal and nonverbal communication.

• Example:– Eye contact– Overt discussion vs. talking around an issue– Physical proximity to another

Emotional Constraints

• Different cultures regulate displays of emotion differently.

• Some cultures may be emotional when debating issues – yell, cry, exhibit fear, frustration, or other feelings openly.

• Other cultures may keep emotions hidden, exhibiting or sharking only rational/factual aspects of a situation.

Cultural Considerations in Criminal Cases

• Cross-culture implications arise in a variety of legal proceedings, both in criminal and civil law.

• In a criminal case, cultural factors can permeate the defense of a client from beginning to end.

• It is imperative to learn about the client’s culture in order to best serve him or her.

Federal Offender Citizenship

Non-U.S. Citizen44.9%

U.S. Cit-izen

55.1%

United States Sentencing Commission, 2013

It is critical to investigate and document cultural practices that impact a case.

• This requires:– Interviewing anthropologists or cultural

psychologists– Interviewing family members and friends– Interviewing members of the relevant cultural

community– Researching the scientific literature on cultural

practices

Criminal Defense

• The most effective way to introduce culture into a theory of defense is to inject it into a recognized defense.

Recognized Criminal Defenses

• Examples:– Insanity– Battered Spouse Syndrome– Diminished capacity– Coercion– Duress– Entrapment– Provocation– Lack of intent– Self-defense

Determining when A Cultural Claim is Valid

1) Is the litigant a member of the ethnic group?

2) Does the group have such a tradition?3) Was the litigant influenced by the tradition

when he or she acted?

Alison Renteln, The Cultural Defense

Culturally Driven Cognitive Insanity Defense

People v. Kimura

• LA County Case

• Charge: two counts of first degree murder with special circumstances

• Death Penalty eligible

Facts

Fukiro Kimura relocated to the United States at 19.

At 33 she was the mother of two children.

Devoted mother and wife.

She knew little English and had no friends.

Facts

• Ms. Kimura found out her husband had been having an affair for three years.

• She became very distraught.• Days after she found out, she attempted to

commit parent-child suicide by drowning.• Ms. Kimura was rescued by two teenagers,

but the children drowned.• The State of California charged her with first

degree murder with special circumstances.

Defense

• The defense argued that Ms. Kimura saw parent-child suicide as the honorable course.

• That it would be far less cruel for her to “take the children” than to leave them disgraced.

Cultural Explanation

• Ms. Kimura attempted to perform the Rite of Oyako-Shinju (Parent-Child Suicide).

• In Japan, this ancient rite is now illegal.• However, the practice is still frequently

carried out.• In Japan, its use usually goes unpunished.

Defense Strategy

• The cultural evidence was used to establish Ms. Kimura’s mental instability.

• Culture was used to support the claim that she had been rendered temporarily insane by grief and shame and turned to Oyako-Shinju.

Outcome

• Ms. Kimura pled guilty to voluntary manslaughter.

• She received enormous support from the Asian community in LA County.

• 4,000 members of the community signed a petition saying that in Japan, parent-child suicide is not considered “murder.”

• Ms. Kimura was sentenced to one year in jail (time served) and five years probation and counseling.

Comments

Cultural Issues in Kidnapping and Rape Cases

California v. Moua

• This is a criminal case arising out of Fresno, CA

• This case involves a Mistake of Fact defense to charges of kidnapping and rape.

Facts

• Mr. Moua and Ms. Xiong had both immigrated to the U.S. from Laos as teenagers.

• They were members of the Hmong ethnic group.

• They knew each other and Mr. Moua though that they were developing a romantic relationship.

Facts• One day, Mr. Moua abducted Ms. Xiong from

the campus of Fresno City College, where she was a student.

• Mr. Moua attempted to effectuate “marriage by capture,” a traditional practice of the Hmong.

• He took her to a relative’s house and forced her to have sex with him.

• Ms. Xiong called the police.• Mr. Moua was arrested and charged with

kidnapping and rape.

Defense

• Mr. Moua explained to the police that in Hmong culture that behavior is not only accepted, it is expected.

Defense

• Mr. Moua’s lawyer argued that his client thought that Ms. Xiong was a willing participant in the “marriage by capture” ritual.

• According to this tradition, a man “kidnaps” his bride to demonstrate his masculinity.

• To show her virtue, the woman protests.• He then “forces her” to consummate the

union.

Defense

• The defense argued that Mr. Moua honestly believed that the woman was playing her role the marriage by capture ritual.

• He didn’t understand that she was actually resisting.

Outcome

• The judge ruled pretrial that the defense could present evidence of the marriage by capture ritual at trial.

• In light of this ruling, the prosecution negotiated.

Outcome

• The prosecutor dropped the kidnapping charges.

• Mr. Moua pled guilty to false imprisonment.

• He was sentenced to 120 days in jail and $1,000 fine.

Comments

Rene_Valladares@fd.org702-388-6577

Q and A