Transcript Culture Clash: Cultural Issues in the Justice Syst

Cultural Considerations
in 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.
• People can learn and
grow.
• Cultural competence is
not stagnant: it can be
developed.
• Organizations can
progress, too.
Cultural Considerations
with 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
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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 culturespecific awareness
• Treat each person as a
unique individual
• Continue to learn
Bridging Cross-Cultural Barriers
• Tolerate ambiguity
• Listen for hidden
meanings
• Establish trust
• Avoid double-entendre
• Show concern and
empathy
• Be patient – with both
yourself and others
• Be aware of non-verbal
cues
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
U.S.
Citizen
55.1%
Non-U.S.
Citizen
44.9%
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:
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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 OyakoShinju.
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
[email protected]
702-388-6577
Q and A