Cultural Defense and Expert Witnesses in the Criminal Court - Analysis of Asian Immigrant Cases in the U.S. -

Along with sharp increase in the number of entering immigrants, world is becoming a multicultural society. With different cultures, customs, norms, and religions of immigrants, new forms of crimes and defenses that were not seen in the previous mainstream society have arisen that led to various cultural conflicts. Particularly, in the United States, which is also frequently referred to as a ‘salad bowl’ where various ethnicities and cultures coexist, the use of cultural defense by defendants in criminal courts is gradually increasing. The term, cultural defense is defined as follows: defendant in the court should not be held fully legally responsible for his or her criminal actions because the defendant, who has become socialized in another culture has acted accordingly to the norms and customs in his or her culture. In this paper, the author examines the representative cultural defense cases of the U.S., and further scrutinizes the statements of social science expert witnesses who testified on the cultural differences and language misuse in the cases. The article examines the nature of the cultural defense in the courtroom and further advocates the admissibility of so-called, social scientific evidence in the criminal proceedings. Because cultural evidence often gets excluded without careful deliberation, this paper emphasizes the necessity of admitting more cultural evidence and its expert testimony in criminal cases in the realm of social scientific evidence. It is further suggested that the court should consider cultural factors not only as a mitigating factor in the sentencing phase, but also throughout the trial phase as a whole. The author gives a number of suggestions including the benchbook guidelines in evaluating the cultural defense claims, and well-utilization of social science expert testimonies in the court proceedings.