Law Office Management
Jun. 2, 2008
Traditional Customs as a Criminal Defense
An individual's native culture can be considered a mitigating circumstance in criminal-defense trials.
Should a defendant's cultural traditions play a role in determining innocence or guilt?
Such factors clearly helped Weili Kao two years ago. Convicted of child abuse and child endangerment, she received a 16-year sentence-but was acquitted of torture, which carries a possible life sentence. Her attorney, Jerry Chong of Sacramento, credits testimony allowed at trial on how traditional Chinese parenting requires strict obedience from children and punishes misbehavior with severe spanking.
Given California's large and growing immigrant population, such defense strategies may become more common: More than a quarter of current California residents are foreign-born, and the immigrant population continues to increase. Alison Dundes Renteln, a political science professor at the University of Southern California and author of the 2005 book The Cultural Defense, believes this population has a right to be judged in the context of its various cultures, in much the same way that arguments of self-defense or insanity provide context in other criminal proceedings.
"Where an individual wants his cultural evidence to be considered, that person should have the right to do that, for reasons of justice [and] the right to culture," says Renteln.
California lawyers, however, are split over how a defendant's cultural traditions should mitigate criminal guilt. Some, like Chong, think a specific law is needed authorizing such evidence because many attorneys and judges may be unlikely to grasp its importance. Others fear that such a law could backfire, resulting in a ban on cultural evidence. Mia Francis Yamamoto, principle at the Law Office of Mia Francis Yamamoto in Los Angeles and an ABA award winner for her commitment to racial and ethnic diversity in the legal profession, favors considering cultural issues on a case-by-case basis.
Prosecutors, for their part, tend to dismiss the idea out of hand. For example, "you certainly ... wouldn't allow a police officer's conduct to be explained by saying the officer was from a country where [they routinely] abuse human rights," says Susan Kang Schroeder, public affairs counsel of the Orange County District Attorney's office.
To be sure, even though courts have granted leniency to Kao and others in considering cultural factors, such a defense doesn't always work. For example, last year after Tony Ricky Yonko, an American Gypsy, was convicted of a capital charge in Riverside County for a murder committed during a burglary, his counsel argued that some elements of Yonko's Gypsy culture-such as stealing as a way of life-led to his crime. Nonetheless, the court convicted Yonko of first-degree murder, opening the door to a possible death sentence.
Alexandra Brown
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