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The South Atlantic Quarterly 100.4 (2001) 981-1004



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Culture, Cloaked in Mens Rea

Doriane Lambelet Coleman


Proof beyond reasonable doubt of the mens rea or state of mind associated with a particular crime is a requirement for the successful prosecution of all criminal defendants under our system of justice. In the legal jargon, it is part of the prosecution's prima facie case. Concomitantly, criminal defendants may successfully challenge the case against them on the ground (among others) that the prosecution has failed to meet this requirement. In this context one of the essential remaining disputes is waged among legal scholars and practitioners about the propriety of the "cultural defense" in cases involving immigrant crime. 1 Specifically, there is disagreement about the admissibility of evidence about immigrant culture and cultural practices in support of the argument that the defendant suffered from a form of cultural "diminished capacity" or "insanity" at the time of the crime. There also is ongoing debate about the admissibility of such evidence in support of the affirmative defense of provocation. While the latter is technically not directed at mens rea, like diminished capacity and insanity, it is introduced to explain the defendant's loss of control in the face of an extreme emotional disturbance. [End Page 981]

In support of the position that evidence about immigrant culture can and should be permitted to explain an immigrant's mental state or his or her loss of control, its proponents, especially practitioners, have suggested that cultural predispositions can and often do affect free will. Or, their colleagues in the academy argue that a sensitivity and even acquiescence to culture in this context is critical to fair results in criminal cases conducted in a pluralistic society. And some have taken a narrower and intermediate view, suggesting that evidence of immigrant culture ought to be admissible, but exclusively in those cases where the charge against the defendant is based on his or her actions or reactions to culturally based subordination. In other words, they argue for culturally based affirmative action in assessing culpability. In my view, each of these arguments is ultimately a pragmatic one: mens rea is the sole inquiry in the guilt phase of criminal proceedings that formally is concerned with the defendant's state of mind and insuring at least the possibility of an outright exoneration in cases involving clashes of competing (American and immigrant) cultures is crucial for certain segments of the immigrant community. 2

Others who take a contrary view of the use of immigrant cultural evidence in this context argue that the effort to cloak immigrant culture in the mantle of mens rea is illogical on the facts of the cases at issue, which, they suggest, show the exercise rather than the alteration of free will. They also argue that the effort is inconsistent with existing law and traditional liberal theory—which is both intentionally and strongly nondiscriminatory—and thus ultimately should be seen for what it is: a disguised attempt to have the courts accept informally that which they could not and should not accept formally, an affirmative defense to immigrant crime that would undermine the native American culture's fealty to the uniform application of its criminal laws. I fall squarely in the latter camp, and in this essay I amplify the case for my position. As I have done in the past, I also demonstrate that this view is not anti-immigrant or antiminority, but rather, in strong support of immigrants who would seek the protection of the laws and cultural inclinations of the United States. 3 In this regard, in particular, I also explain the fundamental distinctions between equal protection–based calls for affirmative action in education and employment and similar calls in the context of criminal evidence law.

The best way to accomplish my objectives is to start at the beginning, with the 1989 decision of a New York Superior Court in the case People v. Chen. 4 [End Page 982] While there may be some debate about this, I believe that Chen, along with the California decision in People...

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