Cultural Issues in Criminal Defense

Cultural issues sometimes affect criminal defense strategies.

When someone does not speak English or comes from a country outside the United States, cultural issues can impact each step of the criminal justice system, from the arrest through the court proceedings. Criminal defense attorneys should take the time to understand how cultural issues affect clients. A couple things to consider are whether the client needs a translator to communication, and the status of his immigration.

Understanding of Police Procedures

An individual with limited English language comprehension will likely have trouble understanding police instructions during an arrest or interrogation. He might not understand his Miranda rights when read them by the police, and consequently might say something to incriminate himself when he has a right to remain silent. Another suspect might fear the police due to conditions in their home countries, which could affect how he conducts himself while in custody.

Attorney's Need for Interpreter

When a defendant does not speak English, his defense attorney will either have to speak the defendant's language or hire a translator. Without accurate communication between the attorney and client, the attorney will have a hard time providing the best possible defense. In addition, the use of a translator during private conversations between a defendant and attorney can raise confidentiality issues.

Defense Arguments

Some criminal law attorneys have used cultural issues as part of their defense strategies. For example, a defendant might argue that the American criminal justice system has charged him for engaging in conduct that is not illegal in his home country. To successfully offer this defense argument, the defendant would need to prove that his culture encourages conduct that is illegal in the United States. A defendant might also try to use cultural differences as a defense by showing a lack of criminal intent due to the acceptability of the conduct in his home country. The success of cultural arguments offered by a defendant depends on a variety of factors, including a judge and jury's willingness to take these arguments into account.

U.S. Immigration Consequences

When a defendant is not U.S. citizen, his criminal defense attorney must understand the additional legal consequences under U.S. immigration laws. For example, a guilty verdict by a jury, or a plea agreement, can affect the defendant's immigration status. In some cases he can be deported. His attorney might need to consult with a U.S. immigration lawyer for guidance. In addition, some witnesses might be reluctant to testify in criminal proceedings if they fear the consequences of a successful prosecution. For example, a victim of domestic violence might be reluctant to testify against the accused batterer if she worries that U.S. will deport him following a conviction. Other witnesses may avoid testifying in criminal cases if they worry about their own immigration statuses.

References

• GP Solo Magazine; "What Did You Say? The Perils of Clients Who Don't Speak English"; David Zachary Kaufman; May 2007
• Utah Bar Journal; "Cultural Issues in Criminal Defense -- 2nd Edition"; Lori J. Seppi
• Ohio State Law Journal; "Differing Cultures, Differing Culpabilities?: A Sensible Alternative: Using Cultural Circumstances as a Mitigating Factor in Sentencing"; Damian W. Sikora; 2001
• Legal Momentum; "The Criminal Justice System and Immigrant Victims"; Leslye Orloff, et al.

Resources

• "Cultural Issues in Criminal Defense - 3rd Edition"; Linda Friedman Ramirez; 2010