CULTURAL EVIDENCE: EXPERT TESTIMONY RE GANG BEHAVIOR

In People v Curiel, 2008 Cal. App. Unpub. LEXIS 1424, (February 21, 2008), a California Apellate Court ruled that a trial court did not abuse its discretion in admitting an expert's testimony that if one gang member has a gun other gang members will know the gang member is armed. The expert testified to the culture and habits of traditional, turf-oriented Hispanic criminal street gangs.

During direct examination, the district attorney asked the expert "Based on your training and your experience, what would be the expectation of gang members based on what you have learned in you career when there is a weapon to be used and the group of gang members committing a crime?."

The expert testified over defendant's objection. "Based on my training and experience and conversations with specific gang members, and listening to conversations between gang members, if there is a gun within a group, that it is expected that everybody knows if there is a gun and who has it."

During redirect examination, building on a hypothetical question defense counsel asked the expert, the district attorney stated: "Let's play along with A and B. A has a gun and he is walking along with B. What would you expect A to tell B about the gun?" The expert testified, "Make sure he knows that he is armed." The appellate court ruled that the expert's opinion concerning criminal street gangs' culture and habits regarding guns was the proper subject of expert testimony.

Can cases as People v Curiel be used as a sword to support the admission of exculpatory group behavior on behalf of a criminal defendant?

ASK THE EXPERT: CULTURAL EVIDENCE AND THE JURY

Kathy Kellermann is a Jury Consultant and Researcher, who followed the case of Tony Yonko. The Editor has previously reported on this case. According to news accounts, expert Anne Sutherland testified during the mitigation stage regarding the defndant's background as a Gypsy, and the fact that violence was not a part of the Gypsy culture. See NCTimes.

The jury ultimately recommended the Death Penalty on February 1, 2008. See news account of jurors comments. The Editor asked Kathy Kellermann about the impact this testimony might have had? Also, what advice can she provide to attorneys who want to present cultural evidence in criminal trials?

WILL EVIDENCE OF CULTURE ALWAYS HAVE A POSITIVE IMPACT ON A JUROR?

Not necessarily. The jury in the Yonko case, which heard evidence about the defendant and his Gypsy ethnic background, might have been influenced in a negative way. The jury was primarily white and definitely "American". Gypsies are people belonging to an "out-group" from the jurors, and gypsies are not a particularly positively regarded out-group by many Americans. As a result, fronting that status may have been unhelpful, drawing attention to that which the "in-group" already dislikes about the "out-group".

IS THERE SOME OTHER WAY THAT SUCH EVIDENCE COULD BE PRESENTED SO THAT IT IS MORE BENEFICIAL?

In general, it may be more effective for defense counsel to put on an argument about how the defendant tried to overcome his gypsy culture (i.e., to say "I am no longer part of that out-group."). This in-group/out-group differentiation, for example, is an important part of understanding why minorities disproportionately receive the death penalty (in pure numerical terms), and disproportionately receive the death penalty for "equivalent" crimes. The research evidence shows that we treat people of poorly regarded out-groups less well, we attribute more blame to them for identical behavior, we are willing to more easily punish them, and we often see their behavior as being due to "who they are" rather than "the circumstances they are in." Members of poorly regarded outgroups are perceived negatively, given little lattitude to deviate from "acceptable" behavior, and are often seen as "objects" rather than "people" .

BUT DOESNT THE JURY UNDERSTAND THAT THIS MIGHT BE EVIDENCE IN SUPPORT OF MITIGATION RATHER THAN CULPABILITY?

The Gypsy culture expert also testified about how stealing is part of the culture, which may have reinforced a negative aspect of the culture, rather than keeping focused on positive or at least neutral aspects of the culture. Given the defendant was accused of stealing from elderly people, this testimony could also have made recidivism seem likely. Also, given the defendant was accused of murdering someone while in the act of stealing from them, this testimony could also have made the possibility of another murder seem likely.

As human beings, we don't sympathize easily with members of outgroups. Separating/distinquishing/etc. a person from a poorly regarded outgroup is a more effective strategy. Now, that all said, some people are more likely, and some people are less likely, to engage in in-group/out-group thinking, and some people go out of their way to sympathize with "underdogs" (e.g., out-groups). However, the gypsy culture has not received the type of attention, for most Americans, to put it into the "these folks should receive sympathy" category, and so fewer jurors in California would naturally sympathize with gypsies or see them as a downtrodden group for whom they should be sympathetic. The natural pool of people, who are less likely to engage in in-group/out-group thinking about gypsies was small because of where the trial occurred, and made smaller by emphasizing the cultural differences (that are not highly regarded).

CULTURAL EVIDENCE : CASE EXAMPLES

The following is the first of real case examples of cultural evidence used in trial or as mitigation evidence. Please contact me if you have a case that you could share with colleagues. Please refer also to Cultural Evidence and Mitigation. with Marcia Shein. Editor.

Defendant from a Middle Eastern country charged with attempting to coerce a (fictional) minor to travel during internet chats, (18 USC 2422) faced either a significant mandatory minimum sentence or a 57 month guideline sentence.

Defense counsel was able to negotiate a reduced stipulated sentence based on cultural evidence, and ultimately to a reduced charge as well (18 USC 2425), use of interstate facilities to transmit information about a minor.

Defense counsel worked with an expert who confirmed and was available to testify that the defendant in his home country could agree to marry a real minor in such a situation, and there would be no crime of statutory rape.

EXPERT TESTIMONY: COERCION

United States v. Williams, 2007 U.S. Dist. LEXIS 77764 (M.D. Pa 2007) could be of assistance to defense attorneys seeking admission of expert testimony on culture, and particularly those defendants who may have suffered trauma due to war or other victimization, or in cases in which the defendant has been coerced into participation.

The Court found that a medical doctor was qualified to testify in an indictment alleging interstate sex trafficking of women, about the medical and mental-health aspects of commercial sexual exploitation and the recognized syndromes related to the victimization of young women in prostitution situations, such as post traumatic stress disorder ("PTSD"), CSECY, and other similar disorders...... Dr. Cooper's opinion testimony may address factors related to vulnerability and enticement of women and juveniles, and may include a discussion of the effects that commonly used grooming and deterrent practices have on prostitutes.

""The Court believes that this general information will provide a framework within which the jury can consider the testimony presented to it and enable the jury to more meaningfully evaluate whether the element of coercion has been established by the Government beyond a reasonable doubt."

EXPERT TESTIMONY: MATERIAL SUPPORT TO TERRORISTS

The District Court in United States v. Abu-Jihaad, 2008 U.S. Dist. LEXIS 12317 will allow the testimony of government witness Evan Kohlmann. The Court rejected the Daubert challenge, and ruled that "the testimony Mr. Kohlmann proposes to provide is relevant to the task at hand and will assist the jury."

Mr. Abu-Jihaad is charged with supplying classified information to Azzam Publications, and the jury will be required to determine, among other things, whether Mr. Abu-Jihaad provided material support to Azzam Publications knowing or intending that the support be used to kill United States nationals. Therefore, the jury will need to understand the role of Azzam Publications in disseminating information supporting al Qaeda and the mujahideen and its connections to various terrorist groups and leaders. Similarly, background information about the conflicts in Chechnya and Bosnia, and the activities of foreign mujahideen fighters, are also relevant to the Government's case against Mr. Abu-Jihaad since Mr. Abu-Jihaad purchased various videos regarding those conflicts from Azzam Publications."

"The Second Circuit has on many occasions approved of the use of experts to provide historical context and structural information to juries in gang and drug conspiracy cases. See, e.g., United States v. Amuso, 21 F.3d 1251 (2d Cir. 1994); United States v. Dukagjini, 326 F.3d 45 (2d Cir. 2003); Locascio, 6 F.3d at 936. In Amuso, the Second Circuit explained that the rationale for permitting such expert testimony is that "[a]side from the probability that the depiction of organized crime in movies and television is misleading, the fact remains that the operational methods of organized crime families are still beyond the knowledge of the average citizen." 21 F.3d at 1264. Thus, the Court of Appeals concluded that "[d]espite the prevalence of organized crime stories in the news and popular media, these topics remain proper subjects for expert testimony." Id. So, too, here. Despite the relatively widespread news coverage of al Qaeda and other terrorist organizations, the operations of al Qaeda--and certainly those of Azzam Publications--as well as the conflicts in Bosnia and Chechnya, are still beyond the knowledge of ordinary jurors."

TRANSLATION OF "SLANG"

Translation of slang does not require Daubert hearing, according to the Court in USA v Verdin-Garcia, (10th Cir 2008). At trial, the government offered the testimony of an experienced translator, who had translated some 3000 wiretap-recorded phone calls from Spanish to English. The recordings themselves were admitted as substantive evidence; the translations were shown to the jury for demonstrative purposes only. The government had asked Ms. Garner, in translating ambiguous words, to provide all possible meanings so that the jury could decide for itself in each case what was meant. In this appeal, Appellants quarrel with her alternative interpretation of the recurring Spanish word jale as "work, gig, job, [or] dope." (It could also mean "snort [of cocaine]," but Ms. Gardner omitted that possibility at the government's request because it might be objectionable as overly prejudicial. Appellants brought it out on cross, however.) Appellants argue that providing the possible meaning "dope" was not translation but rather code-language interpretation, for which they say Ms. Gardner was not qualified. However, they did not cross-examine Ms. Gardner on the word jale, or call their own translator.



According to the Court, a translator may "provide nonliteral translation" of "slang terms or idioms which are widely used and understood by the native speakers of the foreign language." Terms like "420" and "714s," for instance, do not require decoding or code-cracking to understand; it may take nothing but street savvy to know that they refer to marijuana usage and Quaaludes. Once foundation is laid that a translator has that savvy, her translation of drug slang is no more a matter of opinion than her translation of any other slang or idiomatic usage. Differences of opinion on the proper meaning or translation of a slang term are to be resolved--as with other disputes concerning translation--through cross-examination or by the presentation of another qualified translator with a contrary view.

In this case, Ms. Gardner testified that she was familiar with the Nayarit region of Mexico and with its slang, that she had received training on the slang terms of the various regions of Mexico, and that she had interpreted in numerous conversations involving natives of Nayarit. ..... Accordingly, the evidence established that the term jale was not code, but slang within the drug subculture of the defendants' region of origin. Ms. Gardner's training and experience provided her with the ability to understand, and therefore to translate, the term.

INTERNATIONAL LAW AND RACIAL DISCRIMINATION IN THE US

Shadow Report to UN on US Efforts to Eliminate Racial Discrimination

This report is an excellent Resource re Application of Int'l Law to Domestic Issues.
Table of Contents: 0. Executive Summary ; 01. Structural Racism 02. Immigrant Rights
2a Border Militarization 2b Haitian Asylum 03. Discrimination in Legal Profession
04. Domestic Implications 05. Indigenous People 5a Western Shoshone 5b American Indian Boarding Schools 06. Hate Groups 07. Criminal Courts 7a. Vortex War on Drugs
08. Juvenile Justice 09. Police Brutality 10. Prisons 10a Sample Interagency Protocol 10b Children of Incarcerated Parents 10c California Prisons 10d Katrina and Criminal Justice 11. Death Penalty 12. Prison Re-entry 13. Hurricane Katrina 14. Access to Civil Justice 15. Domestic Violence 16. Voting Rights 17. Housing Discrimination 18. Homelessness 19. Health 20. Education 21. Social Security
22. Civil Remedies 23. Labor & Employment 24. Milwaukee 25. Chicago 26. New York
27. Women of Color

CULTURAL DIFFERENCES : CONVICTION OF JAPANESE TOURIST IN AUSTRALIA

Link to the Ballad of Chika Honda, a Japanese tourist convicted of importing heroin into Australia. The article discusses how cultural differences may have influenced the trial strategy and outcome of Ms. Honda's trial. "To Honda's defenders, the case is more complex. They highlight botched interpretations of police interviews in which Honda's explanations were literally lost in translation, and an under-resourced legal aid defence, in which she was advised not to testify at her trial — despite her strong desire to do so."

INTERPRETER: DISMISSAL FOR INABILITY TO FIND INTERPRETER

Link to Article; trial court dismissed sex abuse case, due to inability to find interpreter & speedy trial. State appealed dismissal.

CROSS EXAMINATION MORE DIFFICULT WITHOUT INTERPRETER

Link to article, "Jury hurdles language barrier on its path to rape conviction." Can defense counsel motion court to require witness to use interpreter to prevent witness appearing confused rather than evasive?

POLICE OFFICER INTERPRETER HEARSAY

Saavedra v. State, 2008 Tex. App. LEXIS 25 (January 3, 2008). In an unpublished opinion, an Appeals court in Texas granted a new trial based on interpreter hearsay. The appellant argued that it was error to allow a Detective totestify that appellant admitted to a Spanish interpreter he abused his step-daughter. The Detective admitted he could not understand Spanish and did not know what appellant said to the interpreter. The interpreter did not testify at trial. Appellant argues such testimony is hearsay, not subject to any exception, and resulted in harm because complainant denied the charge at trial, the State emphasized the hearsay during closing argument, and it relied almost exclusively on the testimony to get a conviction.

The Government urged the court to adopt the "language conduit rule," which allows an officer to testify to an interpreter's translation if it meets certain requirements. "We decline the State's invitation to revisit our holding in Durbin. Durbin, 775 S.W.2d at 800 ("A person conversing with a third person through an interpreter is not qualified to testify to the other person's statements, because he knows them only through the hearsay of the interpretor.").

ISSUE: WHEN DOES A DEFENDANT HAVE A RIGHT TO INTERPRETER?

The District of Columbia has a specific statute "Interpreters for Hearing-Impaired and Non-English Speaking Persons Act ("the Interpreter Act"), D.C. Code §§ 2-1901 et seq. (2001), which requires an arresting officer to secure a qualified interpreter for a non-English speaker in custody before questioning that person.

In this case, Torres v. United States, 929 A.2d 880, (D.C Court of Appeals. August 2007) the Court of Appeals affirmed a trial court's ruling that the defendant was not a non-English speaking person for purposes of the statute. The Court of Appeals gave substantial weight to the testimony of the officer who questioned the defendant, regarding the exchange in English. The Defendant proffered the testimony of the defendant's girlfriend who testified that the couple spoke to each other in "broken english." There does not appear to have been any expert testimony on the defendant's language proficiency.