Los Angeles Criminal Defense Lawyer Blog

There has been a recent debate on whether a defendant's cultural customs and traditions should play a role in the criminal justice system. In Sacramento, Weili Kao was convicted of child abuse and child endangerment and received a 16-year sentence. However, based on evidence that traditional Chinese parenting requires strict obedience from children and punishes misbehavior with severe spanking, she was was acquitted of the torture charge, which carries a possible life sentence.

Many people, such as Alison Dundes Renteln, a Los Angeles, California political science professor at the University of Southern California and author of "The Cultural Defense", believe that these people have a right to be judged in the context of their various cultures like arguments of self-defense or insanity provide context in other criminal proceedings.

Prosecutors, however, believe that this type of evidence is irrelevant, has no place in a criminal trial and should be inadmissible. One of their arguments is that, since the prosecution is not allowed to present such evidence to show police officers or other prosecution witnesses "state of mind", why should the defense be allowed to do this? I believe that, in certain cases, this type of evidence showing a defendant's cultural traditions and customs should absolutely be admissible to help the trier of fact understand the entire picture and make an educated decision based on the totality of the circumstances.

An example of such a situation where this type of evidence was critical in making sure justice was served was with one of my client's cases in Dallas, Texas. He is an Albanian who was charged with sexual assault against his 4 year old daughter. A witness claimed that she saw him fondling, caressing, etc. his daughter while watching his 9 year old son's karate match in the front row of a crowded high school gymnasium. Based on this witness' statement to police, both of my client's children where taken away from him and his wife.

At his criminal trial, the judge allowed a Massachusetts anthropologist named Barbara Halpern (one of the country's foremost authorities at the time on the peasant culture of the Balkans) to testify as to Albanian culture and how it is very common for fathers to love their children so much and show this affection by touching, caressing, etc. She explained that these actions were done not with sexual intent but, rather, with playful affection -- in keeping with his culture, which cherishes children and showers them with physical affection.

Sadly, though, although he was acquitted of the criminal charge, his children had been taken from him permanently after his child custody trial. In that trial, the judge would not allow Ms. Halpern testimony regarding Albanian traditions and culture.