Cultural and Other Defenses

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Cultural and Other Defenses

• Rotten Social Background
• Television Intoxication

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Cultural Defenses

• What is a cultural defense under the law?
• Cultural defenses attempt to persuade
  decision-makers that some element beyond the
  defendants control contributed to the commission
  of the crime
• Where has it been used?
• Immigrant Rape and Murder Cases
• Black Rage Cases
• What is the proper role of such defenses?
• Excuse?
• Justification?
• Mitigation?

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Interest Convergence Theory and the Cultural
Defense Cynthia Lee Professor of Law at George
Washington University Law School

• What is Cultural Defense?
• The proffer of cultural evidence by a criminal
  defendant, usually an immigrant or racial
  minority, seeking to mitigate a charge or
  sentence
• The Debate Sometimes judges admit cultural
  evidence, and sometimes they do not, whether the
  evidence SHOULD be allowed is a hotly contested
  issue

• Advocates
• U.S is multicultural and should be permissive of
  evidence that shows how backgrounds may have
  contributed to actions
• Non minorities already have an advantage in the
  courtroom

• Opponents
• Defense can further harm the victim of cultural
  violence often women and children
• Equal Protection Violation favors immigrants
  and minorities over members of majority class

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Interest Convergence Theory and the Cultural
Defense (cont.)

• Failures
• When in Rome
• Cultural Cognition
• How Interest Convergence Helps
• Better Prediction Pattern observed that
  immigrant/minority defendants most likely to
  succeed with defense when interests match those
  of the majority
• Borrows from Derrick Bells interest convergence
  theory to explain the success
• the idea that the interests of blacks in
  achieving racial equality will be accommodated
  only when it converges with the interests of
  whites
• Successful Uses of Cultural Defenses
• 3 prototypical cases

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Asian Immigrant Men Who Kill Their Asian
Immigrant Wives

• Many Asian immigrant men who have killed their
  Asian immigrant wives have successfully used a
  cultural defense
• Husband charged with second degree murder for
  killing his wife by striking her eight times with
  a claw hammer after she confessed to adultery
• Violent reaction wasnt unusual given his
  background but usually the community stops him
  from following through because in America this
  safeguard was not in place
• The reason behind this success may have been
  because his claim was familiar and resonated with
  the jury

Hmong men who marry by capture

• Hmong man charged with rape claimed he thought
  the forced sex with a woman he took from her
  dormitory room was consensual given the Hmong
  cultural practice of marriage-by-capture
• Prosecution allowed for a plea-bargain to a
  lesser offense
• May have appeared prosecution was receptive of
  cultural defense but plea-bargaining is common,
  particularly in date-rape cases which are usually
  he-said/she said

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Black Rage

• The black rage angle is a more difficult case
  hard to see converging interests in acquitting a
  black man of a crime against a white man using a
  race based deviance defense
• Nevertheless, following the acquittal of the
  officers charged in the Rodney King beating,
  riots erupted in South Central Los Angeles. There
  was a case where a white man drove his truck into
  an intersection where an angry crowd had
  gathered, and they pulled him from his truck and
  beat him.
• Defendants attorneys didnt deny the beating
  but said that they lacked specific intent due to
  Black rage and mob contagion
• Lee explains it as dependence on a stereotype
  pervasive among whites that blacks are prone to
  be deviant criminals.
• black rage and mob contagion fit with idea
  that jury believed that the two young black men
  could not help acting the way they did.
• Bottom Line
• In all three cases, acceptance of the immigrant
  or minority defendants claim reinforces negative
  stereotypes about the racial or ethnic group to
  which they belong. The ends achieved had
  interests matching those of the majority.

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What is the Causal Story?

• What type of picture of causation are we trying
  to forward with the cultural defense?
• Defendants grew up in a culture from which the
  rules dont translate?
• Too insulated from legal/social norms to
  internalize?
• Competition between traditional and new legal
  norms that somehow sets up conflict?
• Limitation on rationality?
• Problems with Using Interest Convergence as a
  Causal Theory
• Testifiability/Falsifiability

8
United States v. Alexander and Murdock(United
States District Court of Appeals, District of
Columbia Circuit, 1972)
Case Study

• Facts
• 5 White Marines and their woman friend entered a
  restaurant where the 2 Black defendants were
  dining. The two groups exchanged stares, leading
  to racial insults directed at defendants.
  Defendants fired their weapons at the Marines.
• 2 Marines were killed, the woman friend and one
  other Marine were injured
• Murdock was convicted of 2nd degree murder
  despite his insanity defense
• Alexander was found guilty of assault with a
  deadly weapon

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Issues

• Among the issues raised on appeal was Murdocks
  claim that the jury instructions prejudiced his
  insanity defense

Instructions given to Jury We are not concerned
with a question of whether or not a man had a
rotten social background. We are concerned with
the question of his criminal responsibility. That
is to say, whether he had an abnormal condition
of the mind that affected his emotional and
behavioral processes at the time of the offense.
Murdocks Defense

• The environment in which he was raised
  conditioned him to respond to certain stimuli in
  ways that most would consider flagrantly
  inappropriate
• This conditioning denied him of meaningful
  choice in the way he responded to the racial
  insult
• Asks the jury to conclude that this rotten
  social background coupled with the impairment of
  mental or emotional processes and behavior
  controls be treated as causing his violent
  outburst in the same way that the behavior of a
  paranoid schizophrenic is controlled by his
  mental condition

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The Courts Analysis

• Never established that exculpatory mental
  illnesses must be organic or pathological nor
  has psychosis been a prerequisite BUT mental
  disease and abnormal condition of the mind are
  distinct because they deflect attention from the
  crucial question of if the defendant lacked the
  ability to make a meaningful choice of action
• In this case, using rotten social background as
  opposed to a treatable mental illness as a
  defense, we must recognize that civil commitment
  may no longer be an option, and decide the proper
  way to deal with these defendants.
• Despite problems, much is sacrificed in
  discouraging Murdocks responsibility defense
  could lead to information allowing us to learn
  about the causes of crime and the causal
  relationship between violent criminal behavior
  and rotten social background

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Morse v. Bazelon Scholarly Debate Over the
Connection Between Poverty and Crime

• The Twilight of Welfare Criminology - Stephen J.
  Morse
• Initially assumed that behavior was caused and
  that the causes and cures of crimes would be
  discovered
• Sociological thinkers saw the causes of crime in
  social order
• Psychological and psychiatric thinkers saw the
  causes of crime in personality disturbances the
  traditional justice system was characterized as
  an ineffective remedy for societal sickness
• Modern scientific approaches sought to treat the
  underlying causes of crime rather than treating
  the symptom criminal behavior
• Question for consideration Does poverty cause
  crime?
• Strong correlation between low socioeconomic
  status and violent street crime
• BUT majority of the poor are not violent
  criminals
• Conclusion Judge Bazelon wrong in belief that
  poverty causes crime and his poverty cure
  (eradicating poverty to eradicate crime) does not
  work

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• The Morality of the Criminal Law
• A Rejoinder to Professor Morse
• David L. Bazelon
• Morse concludes that the poverty cure doesnt
  work, but he offers no evidence suggesting that
  increase in crime in periods of economic growth
  is produced by persons who are no longer poor
  suddenly turning violent
• It is those that remain poor and dont benefit
  from the economic growth who become more violent
• Morse is wrong poverty is a necessary cause of
  violent street crime

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• Third Party Reflection on the Debate
• Malign Neglect Race, Crime, and Punishment in
  America
• Michael Tonry
• Applying a social adversity defense to all
  offenses committed by individuals to which it
  applies would eliminate all incentive to be
  law-abiding and lead to preventative detentions
  to protect the rest of society from those who
  cant be held legally responsible for their
  crimes
• Overriding Objection there are no groups for
  which the base expectancy rate for first offenses
  is 100 - there are always those who abide by the
  law, and this is a powerful argument against the
  social adversity defense
• Analogy between insanity and social adversity is
  only partial with insanity there is little
  question that the offender is not morally
  responsible, whereas with a disadvantaged person
  we have no conclusive reason to think he could
  not have chosen to act differently. If there is a
  choice in the behavior than removing consequences
  for the wrong choice is perverse

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Validation?

• How do we validate the use of cultural
  defenses in law? How do we deal with evidentiary
  problems and validity of the social science? How
  do we even establish validity of the social
  science in cultural defense cases?

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Television Intoxication

• The Zamora Cases
• The Problems
• The Research

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• Florida v. Zamora
• (Circuit Court, Dade County, Florida, 1977)
• Facts
• 15 year old Zamora was tired for first degree
  murder of his 85 year old next door neighbor.
  Zamora admitted to shooting her with a pistol he
  found in her house when she returned home to find
  her in the process of burglary Zamora and an
  accomplice stole 400 after the shooting
• Zamoras defense
• Attorney, Ellis Rubin, pleaded him not guilty by
  reason of insanity offered 3 facets of the
  alleged condition
• Zamora was a television addict
• Sociopathic personality who could not refrain
  from doing wrong
• The thousands and thousands of murders that he
  has seen on television caused his reaction as a
  condition reflex or imitation
• Rubin attempted to introduce expert witnesses to
  present studies on the association between
  watching violent television and subsequent
  violent behavior
• Dr. Margaret Thomas Doctor of Psychology and
  Assistant Dean of Academic Affairs of Florida
  Technological University

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• Rubin sought to have Dr. Thomass expert
  testimony support the idea that Zamoras
  involuntary desensitization to violence resulting
  from his television addiction skewed his
  standards of right and wrong for killing and is a
  legitimate defense for his crime
• Analogy that TV in this case is like alcohol,
  causing a loss of control
• Judge Baker finds it essential that the
  reliability of the scientific tests and results
  of the experiments used as the basis for the
  evidence presented be recognized and accepted by
  scientists, or that the demonstration shall have
  passed from the stage of experimentation and
  uncertainty to that of reasonable demonstrability
• Baker does not see the defense forwarded by Rubin
  and Dr. Thomas to satisfy this standard
• Baker wanted an absolute statement that too much
  TV destroys ones ability to tell right from wrong
  
• Dr. Thomas could only assert that TV can shape
  conceptions of right and wrong that differ from
  normal ones, but there were no available studies
  linking television to legal insanity
• Testimony was excluded because of the lack of
  tests conclusively linking any television program
  or amount of TV violence directly to homicide or
  crime

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• Zamora v. State
• (District Court of Appeal of Florida, Third
  District, 1978)
• Following Zamoras loss at the trial court level,
  an appeal was brought to challenge the decision
  of the trial judge to limit Dr. Thomass
  testimony Zamora asserts that allowing Dr.
  Thomas to testify only to TVs effect on
  sociopaths and not on the effect of violence upon
  adolescent viewers frustrated his insanity
  defense
• Appeals Says
• The lower court did not err in its decisions
  the evidence was properly limited according to
  the MNaghten standard
• MNaghten Standard - The doctrine that a person
  is not criminally responsible for an act when a
  mental disability prevented the person from
  knowing either the nature and quality of the act
  or whether the act was right or wrong.
• Dr. Thomass unlimited testimony on effects of
  violence on adolescents generally would not have
  included testimony that showed that watching
  violent television programs to excess affects
  individuals to the point where they cant tell
  right from wrong under MNaghten, making her
  testimony irrelevant to the proceedings
• The court made it clear that TV was not on trial
  in this case, Zamora was and his defense of not
  guilty by reason of insanity induced by
  involuntary subliminal television intoxication
  simply was not acceptable

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• Zamora v. Columbia Broadcasting System
• (United States District Court, Southern District
  of Florida, 1979)
• The Zamoras followed their criminal loss with a
  suit against the National Broadcasting Company,
  Columbia Broadcasting System, and the American
  Broadcasting Company for damages, continuing to
  assert that the extensive viewing of television
  violence put forth by the defendants programming
  involuntarily addicted and completely
  subliminally intoxicated Ronny from the age of
  five.
• The legal claim asserted was a breach of duty to
  the Zamoras to use ordinary care and prevent
  Ronny Zamora from being impermissibly
  stimulated, incited and instigated to duplicate
  the atrocities viewed on television
• The Court did not find it appropriate to find
  this type of liability on behalf of the
  defendants such a claim would likely spiral out
  of control in a way that broadcasting companies
  would not be able to safely air much of anything.
  A suit of this kind endangers the stability of
  the First Amendment suggesting it be altered to
  permit additional limitations in programming

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But For??

• How can we isolate the causal influence of a
  toxic stimulus like televised violence? Zamora
  has obvious problems like the assumption that
  children are blank slates and that once exposed
  to toxic television there are no other means to
  minimize the alleged effects.

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Research on Television Violence and other Violent
Media

• Huesmann Study Longitudinal Relations Between
  Childrens Exposure to TV Violence and Their
  Aggressive and Violent Behavior in Young
  Adulthood 1977-1992
• Follow up of a 1977 longitudinal study of 557
  children growing up in the Chicago area. Aim was
  to investigate long term relations between
  viewing media violence in childhood and
  young-adult aggressive behavior
• Study found correlations between adult aggression
  and early TV-viewing variables.
• Researchers concluded that the results suggest
  both males and females from all social strata and
  all levels of initial aggressiveness are placed
  at increased risk for the development of adult
  aggressive and violent behavior when they view a
  high and steady diet of violent TV in early
  childhood

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Violence in Video Games(Parallel Study)

• Contrasting Views
• Craig Anderson violent video games plant seeds
  of aggression
• Experiments show more likely to harbor aggressive
  thoughts and show aggressive behavior after play
• Kevin Durkin doesnt observe the same thing
  when teens play the games
• Only observes people having fun

• Debate lines up as those who fear violent video
  games fuel aggression v. freedom of free speech
  advocates
• Unclear who is right
• Questionable affiliations
• Different interpretations of studies
• Problems
• Everyone measures different things
• Personal ideas of what is violent enter analysis
• Different proxies for aggression measured

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Lingering Questions

• Millions of copies of video games are sold why
  dont we see greater effects? Games are clearly
  not affecting all who use them or we would see
  more than an alleged correlation. There is also
  the idea that these studies ignore the more
  complex nuances of aggression -