Excerpted From: Cynthia Lee, Cultural Convergence: Interest Convergence Theory Meets the Cultural Defense, 49 Arizona Law Review 911 (Winter 2007) (295 Footnotes) (Full Document)


cynthialeeMuch has been written about the so-called “cultural defense”--the proffering of cultural evidence by a criminal defendant seeking to mitigate a charge or sentence. Many scholars support the admission of this kind of evidence, but urge its limitation to negate the mens rea. Others take the position that the admission of cultural evidence violates the principle of equal protection by favoring immigrant and minority defendants over non-immigrant, non-minority defendants, and therefore should be sharply circumscribed. Recently, a few legal scholars have issued calls for recognition of an official cultural defense. this Article, I neither defend nor criticize the practice of using culture in the criminal courtroom. Rather, I seek to illuminate why some uses of it seem more successful than others. Generally speaking, immigrants and minority defendants who seek to proffer cultural evidence in their defense do not succeed. Either the judge deems such evidence irrelevant and denies its admission, or the jury is unpersuaded that the defendant's cultural background should be grounds for leniency. An extensive review of the literature suggests that immigrant and minority defendants who successfully introduce cultural evidence in their defense have one thing in common: the cultural norms underlying their defense are either similar to or coalesce with those of the dominant majority. Borrowing from Derrick Bell's interest convergence theory, I argue that cultural convergence is one way to explain these results. Cultural convergence is the idea that the interests of minority and immigrant criminal defendants in obtaining leniency seem most likely to receive accommodation when there is convergence between dominant majority cultural norms and the cultural norms relied upon by the immigrant or minority defendant.

This Article proceeds in three parts. In Part I, I present an overview of the major legal issues surrounding the use of cultural evidence in the criminal courtroom. Part II provides a comprehensive taxonomy of the ways Bell's interest convergence theory has found application in scholarship on a variety of subjects from reparations to pension reform. In Part III, I illustrate how cultural convergence can help explain the successful use of culture in the criminal courts. Three types of cases in which cultural defense arguments seem to be the most successful support my thesis: (1) Asian immigrant men who kill their unfaithful Asian immigrant wives and claim that they acted reasonably within the dictates of their culture; (2) Asian immigrant women who kill their children and claim they were attempting to commit parent-child suicide upon learning of their husband's infidelity; and (3) Hmong men charged with rape who claim they were engaging in the Hmong custom of marriage by capture. Cultural convergence is also evident in the rare case in which a Black man successfully asserts a deviance defense like “Black Rage” or “mob contagion.”

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The cases I have examined are troubling on a number of fronts. First, in each case, the defendant or defendants committed a crime of violence against an innocent victim. Dong Lu Chen bludgeoned his wife to death; Fumiko Kimura and Helen Wu killed their innocent children; Kong Moua had sexual intercourse with an unwilling partner; and Damian Williams and Henry Keith Watson kicked and beat Reginald Denny until he was almost dead.

Second, the cultural narratives told by each of these defendants seem to have been persuasive to a large extent because they were either familiar refrains or tapped into existing sexist or racist social norms. Dong Lu Chen's outrage at discovering his wife's infidelity may have made sense to Judge Pincus not only because American men have been similarly outraged, but because of stereotypes about patriarchal Chinese men and their familial relations. Fumiko Kimura's story of despair and hopelessness was persuasive perhaps because it reinforced the image of the emotionally weak woman completely dependent on her husband for her happiness. Kong Moua's claim that he honestly and reasonably believed Seng Xiong was consenting to sexual intercourse may have persuaded the prosecutor to drop the rape and kidnapping charges against him not only because of the he said/she said nature of his story, but also because doing so reinforced stereotypes about Asian men as barbaric misogynists. Damian Williams and Henry Keith Watson's claim that they were caught up in the mob mentality of the moment and could not help beating Reginald Denny made sense to the jury because it reinforced deeply-ingrained stereotypes about young Black males as violent, deviant criminals. That these cultural narratives were successful when the vast majority of cultural narratives are rejected in courtrooms across the country suggests that the persuasiveness of a defendant's cultural claims may turn on the extent to which the claims converge with dominant subtexts of racism and sexism.

In cultural defense cases, it is important for attorneys to be aware of and to counter negative and possibly incorrect stereotypes. The prosecutor in the Dong Lu Chen case could have called an expert witness to counter Burton Pasternak's testimony. Instead he did nothing on the assumption that the judge would not believe Pasternak's assertions. The Assistant District Attorney who tried the Chen case explained, “[i]n our wildest imaginations, we couldn't conjure up a scenario where the judge would believe that anthropological hocus-pocus.” The prosecutor in the Kong Moua case could have presented evidence that the Hmong practice of marriage by capture is no longer widely accepted by the Hmong community in America. The Hmong District of the Christian and Missionary Alliance, for example, has officially denounced marriage by capture. The prosecutor in Williams and Watson could have called expert witnesses to testify about the prevalence of the “Black-as-Criminal” stereotype and asked the judge to instruct the jurors that it is inappropriate to rely on racial stereotypes when deciding whether to acquit or convict. By not countering the cultural evidence presented, these prosecutors unwittingly assisted the other side.

When minority and majority cultural norms converge, the minority offender may secure an acquittal or light treatment while reinforcing negative stereotypes about his entire community. By enabling us to understand these double-edged dynamics as well as the selective receptivity of the law towards certain cultural defenses, cultural convergence theory offers a starting point for scholars and policymakers concerned with the rule of law in an increasingly diverse society.

Cynthia Lee is a Professor of Law at the George Washington University Law School.