Criminal Law
Lecture Outline - Fall 2008
Professor Lee
Section 1
September 10,
2008
Mens Rea,
cont'd.
THE
"CULTURAL DEFENSE"
1. Criminal
law generally does not recognize a formal "cultural defense"
2. What
might be meant by the phrase "cultural defense"?
a. An
"estoppel" or "same-law" type defense based on the
alleged unfairness of holding someone to laws wholly unfamiliar in the
actor's native culture
i.
Example: In A's native country, someone audited by the tax
collector is expected to give an "honorarium" to the
collector before the audit; when A offers such an honorarium to an IRS
agent, he is prosecuted for bribery -- A argues that his ignorance of
American bribery law should support an estoppel-type defense
ii. No
reported case upholds an estoppel-type defense on the basis of culture
b. A
"mens rea" or "different-law" type defense where
evidence of the actor's culture helps explain why the actor lacked the
requisite mental culpability for the charged offense
i.
Example: In B's native country, insults directed at one's
grandmother are considered particularly offensive, impugning the
entire family's honor -- when B kills C for such an insult, he seeks
to introduce evidence of this cultural norm to help explain his
extreme emotional disturbance (which would reduce murder to voluntary
manslaughter)
ii. A
few cases uphold mens rea-type defenses based on culture; some have
rejected it based on policy concerns
c.
Informing the jury or judge of the actor's native culture in the hope that it
will be considered informally in the guilt phase or sentencing
3. Nguyen
v. State
a. Def
offered cultural evidence in support of affirmative defense
(self-defense versus assault charge)
b.
Held: Even considering cultural evidence, reasonable person in
def's situation would not perceive imminent physical attack (i.e.,
harmless error)
c.
Dicta: Court leaves open possibility that cultural evidence might
be admissible to help demonstrate that a reasonable person in def's
situation would perceive such imminent attack
4. Trujillo-Garcia
v. Rowland
a. Def
offered cultural evidence to negate malice, an essential element of
murder
i. By
establishing "reasonable provocation," a murder defendant
negates malice
b.
Held: Even considering cultural evidence, reasonable person in
def's situation would not have reacted homicidally (i.e., harmless
error)
i. No
evidence that in def's native culture the alleged provocation had
actually led to homicides
ii.
Court leaves open possibility that in an appropriate case the
Constitution might require a trial court to admit cultural evidence to
disprove an essential element
