1. Cultural Considerations in the Courtroom
Rene Valladares, Federal Public Defender, District of Nevada

3. 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.
Slide Source: US Census Bureau
Immigration is at record levels. Additionally, immigrants are coming from a much more diverse group of countries than ever before.
Historically, the vast majority of immigrants have come from Europe, but now, immigrants from other areas of the world dominate. Many of those areas have customs, traditions, mores, values, and laws that are very different from those of the United States.
Source: ABA

4. 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
Slide Source: US Census
As the ratio of immigrants to residents born in the US increases, immigrants are no longer quickly assimilated into US society. This means that new immigrants (in general) will be less exposed to (and thus, less familiar with) US cultural norms and values, and US law.
Source: ABA

5. “Growth of the foreign- born population is projected to exceed that of natives, resulting in
an increasing share of the future U.S. population that is foreign born.”
Source:

6. “The U.S. population is also projected to become more diverse, as seen in the projected increases in the percentage of the population that is a minority—groups other than non-Hispanic White alone.
By 2044, the United States is projected to become a plurality nation.
While the non-Hispanic White alone population will still be the largest, no race or ethnic group is projected to have greater than a 50 percent share of the nation’s total.”
Source:

7. 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.

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

9. Development Cultural competence is not innate.
Cultural competence is not stagnant: it can be developed.
People can learn and grow.
Organizations can progress, too.
Source: ABA Building Community Trust

10. 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.
Source: ABA

11. 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.
Source: ABA

12. Culture Shapes Behavior
Communication Style
Interactions with Others
Decision-Making Paradigms
Ex: Individual vs. Family

13. 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.

14. 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

15. 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.

16. Source: https://www.mla.org/map_data
Source: Modern Language Association, American Community Survey (using data collected from 2000, 2010 Census).

17. 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

18. Assumed Similarity The assumption that:
Words and gestures have a set meaning; and
The message being sent is effectively received.
When we talk about “assumed similarity” we are talking about certain assumptions that we make in communication: that words and gestures have a set meaning – namely, the meaning that our culture gives that word or gesture.
We are also talking about the assumption that if both parties speak the same language (ex: English) the message we send with our words is the message that the other party receives when he or she listens.

19. 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)

20. Nonverbal Communication
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
When considering barriers to cross-cultural communication, must consider both verbal and nonverbal communication. Nonverbal has a significantly higher influence on the effectiveness of the communication and is highly susceptible to variation by culture.

21. Verbal Communication Words with multiple meanings: Assumptions about:
400 common words have 14,000 different meanings
Nuance, idioms, and slang (use being particularly hazardous)
Assumptions about:
Accent (intelligence)
Pacing/timing (aggressiveness, intelligence)

22. 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.
Source:

23. 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.
Source:

24. 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.
Speaking with the interpreter prior to the scheduled meeting gives an opportunity to meet the interpreter, get acquainted, give some background information, and answer any questions he or she may have.
-Discuss technical terms that will be used.
-Discuss cross-cultural issues
-Allow adequate time to review documents that may need sight translation
-Discuss confidentiality
Sending documentation before the proceeding helps the interpreter to become familiar with the elements of the case.
Speak to the parties using the second person. For example, ask “What is your address” and NOT “What is his address”
Source:

25. 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

26. 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

27. 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.

28. Cultural Considerations
When communicating with a cross-cultural client, there are three important constraints to be aware of:
Cognitive Constraints
Behavior Constraints
Emotional Constraints

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

30. 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

31. 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.

32. 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.

33. Federal Offender Citizenship
United States Sentencing Commission, 2013

34. 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

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

36. Recognized Criminal Defenses
Examples:
Insanity
Battered Spouse Syndrome
Diminished capacity
Coercion
Duress
Entrapment
Provocation
Lack of intent
Self-defense

37. Determining when A Cultural Claim is Valid
Is the litigant a member of the ethnic group?
Does the group have such a tradition?
Was the litigant influenced by the tradition when he or she acted?
Alison Renteln, The Cultural Defense

38. Culturally Driven Cognitive Insanity Defense

39. People v. Kimura LA County Case
Charge: two counts of first degree murder with special circumstances
Death Penalty eligible

40. 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.

41. 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.

42. 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.

43. 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.

44. 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.

45. 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.

46. Comments

47. Cultural Issues in Kidnapping and Rape Cases

48. 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.

49. 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.

50. 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.

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

52. 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.

53. 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.

54. 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.

55. 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.

56. Comments

57. Rene_Valladares@fd.org 702-388-6577

58. Q and A