The Jury Talks Back

2/15/2009

Culture as a Defense

Filed under: Uncategorized — JRM @ 4:54 pm

I want you to know this: I am not making this up.

The California Bar Journal has a story about the use of culture as a defense on this month’s front page.

I haven’t read Professor Renteln’s book, but she wrote a short article on the subject.

From the introduction:

When individuals commit culturally motivated acts that clash with the law, they may ask courts to consider the cultural imperatives that inspired the actions in question. When they advance arguments of this sort, they usually wish to introduce expert testimony into court to underscore the validity of their claims. Unfortunately, judges are often disinclined to allow the presentation of such evidence and exclude it as “irrelevant.” Their refusal to permit cultural evidence is unfortunate because it can result in a miscarriage of justice. My view is that the cultural defense should be established as official public policy as long as safeguards are put in place to prevent its misuse.

And she cites anecdotes:

– A Mexican-American whose fellow poker player called his mother a bad name, so the guy shot him. Professor Renteln opines that this should have been manslaughter because a Mexican would be way more likely to shoot someone over it than a, you know, regular American.

– A Muslim Albanian man who was fondling his four-year-old daughter’s genitals in public. He was criminally acquitted because he brought in a culture defense (and that his intent was not to sexually stimulate himself or his daughter) but the family law people still took the daughter under the theory that fondling four-year-old’s genitals is bad. This was an injustice.

– A Thai man who participated in a robbery where two people were killed showed no emotion throughout and, while denying he “pulled the trigger” (per Renteln), refused to identify who did. He got executed for his crime, but his culture apparently frowns on showing emotion, so he shouldn’t have gotten the death penalty.

I’ll help Professor Renteln on that last: He definitely didn’t pull the trigger. That’s because one of the storekeepers was beaten and strangled, while the other was repeatedly stabbed in the head, neck, and hands, and left a blood trail throughout the store. There was pretty decent evidence that he was, indeed, the killer, even without any trigger-pulling (though they did not have to prove that to give him the death penalty.)

Renteln proposes a three-prong test:

1. Is the litigant the member of an ethnic group?

2. Does the group have such a tradition?

3. Was the litigant influenced by the tradition?

Now, I know what many of you are saying: Hooray! I now have cultural defenses for my behavior. Please pick from the below:

Western European Drunken Jackass Culture: While fraternity members are often hearty fellows well-met, some have grown up in a culture where they bear no responsibility for their actions, and now have more money than brains. Is it really rape if she’s drunk? Not in this culture! We should not judge so harshly, unless we have walked a mile in their $380 crocodile-skin shoes.

(Your ethnicity here) Cop-Hating Culture: If you’ve played a lot of Grand Theft Auto, it’s not that bad to slug cops. This sort of cultural defense is appropriate. You can certainly find some reason for your ethnicity to hate cops.

Eastern European Puppy-Stomping Culture: Are you going to judge a guy for stomping on puppies? Have you considered what his upbringing must be for him to have done that? Who are you to judge? Jerk.

Of course, in reality, I find that Mexican-Americans of my acquaintance don’t shoot their fellow poker players for insulting them, that Thai people don’t take off with stolen property off of the brutally murdered and then clam up about it, and that most people are aware of the no-molesting rules as they apply to four-year-olds. But maybe I’m culturally biased.

Don’t worry, though. There’s a caveat: The court should weigh the “human right of the custom against other important human rights, such as the rights of women and children.” Not that we should get all excited about preventing people from [Scott Jacobsesque phraseology beginning with “finger” redacted] four-year-old girls and should maybe review whether that’s good for them.

Nor should we go all nuts about whether female shopkeepers should be brutally murdered. But we should weigh their rights. Somehow. A little.

Here’s why we have laws: To cause people to conform their behavior to those laws. Don’t rape 12-year-olds. Don’t steal from old people. Don’t use PCP. Don’t drive without a driver’s license.

Some laws are to prevent evil. Some laws are to preserve an ordered society. Not everyone agrees with every law. But the law’s not based on who you are. Just because Uzbekhistan doesn’t have a driver’s test doesn’t mean you don’t have to pass it. Just because they let you rape children in the Sudan doesn’t mean we’re going to let you. We, in fact, are going to send you to prison forever. Which is as it damn well should be.

Why Peremptory Challenges are Good

Filed under: Uncategorized — JRM @ 4:05 pm

A lot of people in the threads on peremptory (or causeless) challenges said there shouldn’t be any; commentator Dodd on the main page said it pithily:

There should be no [peremptory – JRM] challenges. None, Zero, Zip, Nada. They are an affront to the very reason we have a jury system.

Commenter tim maguire said that jury selection should be “little more than pulling 12 people off the street.”

Others complained of the removal of experts from the jury pool; often a person with expertise in the field will get thrown off a jury.

In my experience, peremptory challenges lead to more just juries. A lack of peremptories would surely help the defense; the prosecution has to convince twelve, while the defense has to convince one. But more than that, you want to get rid of people with axes to grind, and a lot of times you can tell that what’s coming out of a person’s mouth doesn’t represent their real views.

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Reasons for Peremptory Challenges: My View

Filed under: Uncategorized — JRM @ 3:26 pm

About a week ago, I talked about peremptory challenges, and asked what the rules should be on race/religion/sexual orientation/gender/other as a reason to boot a juror. Peremptory challenges are causeless challenges which the lawyers use to try to improve their chances of winning.

Patterico folllowed up, quoting my hypotheticals. Many excellent comments followed both threads.

First, the actual rules: You can throw off people for no reason at all, but not for a bad reason. Bad reasons vary by jurisdiction a little, but ethnicity and religion (for instance) can’t be used. Age can be used, and often is (prosecutors like older jurors; the more vested they are in the community, the better.)

Here were my hypos, and the actual current rules:

Should the prosecutor be permitted to use his peremptory challenges partly or wholly on the basis that the juror appears to be of French ancestry? Should the defense be permitted to throw off Irish people on the basis that they are Irish? Neither side will throw off all members of the troublesome group, but they wish to use it as a factor.

A court would say no; that’s improper use of ethnicity.

Prosecutor believes that younger jurors are less likely to convict than older jurors, and wishes to use age as a factor. Should he be able to do so? How about the defense?

A court would say yes; that’s acceptable.

Prosecutor believes that gay jurors are less likely to convict than straight jurors. Should she be able to do that? Should the defense be able to kick straight jurors for being straight? Should the defense be able to keep a gay juror based on their orientation.

A California court would not allow that; we’ve got almost-full gay rights here.

Prosecutor believes that on a rape case, male jurors are more likely to convict than female jurors. Should she be able to use gender as a proxy?

And the answer there is, no, you can’t.

There was significant support in the comments for unlimited reasons for peremptory challenges; they’re not for cause, so there’s a case to be made for that. This would permit attorneys to use these sorts of proxies. And let’s not be shy about the reason for peremptory challenges: Lawyers want to win. Prosecutors will throw people off who are wild cards, while defense attorneys are often looking to get some people on the jury who will hang it up. This isn’t always true; sometimes the defense has a good case and wants rational jurors, but that’s not the way to bet. Most criminal defense attorneys view a hang as a win.

The problem with permitting (say) race-based challenges is that you excise a part of the community from the jury process, and maybe they know something that others don’t. I’m certainly for removing most of the criminals, the idiots, and the people who just ain’t right.

But in the end, I think that enabling the government to act in a way that is racist is bad practice. Excluding people based on race simply doesn’t strike me as something that is an overall good for society. Excluding, say, black people from juries is a further distancing of a group from other groups.

I do think the age bias is legitimate practice, because people will get older; no group is permanently excluded. I certainly engage in this bias; if it were illegal, I wouldn’t. I have a significant preference for older jurors.

I think homosexuals ought to be able to be part of jury service, and making bias against them illegal surely increases their numbers on juries. I don’t think government should engage in anti-gay behavior.

I’m less certain that the gender-bias rules are necessary for the inclusive society we want, but my tentative view is that the rules prohibiting gender bias in jury selection are the right ones.

In comments, Kevin Murphy smartly brought up whether the defense ought to have a different standard: Suppose the government has to act in a race-neutral fashion, but the defense can do anything it wants. Kevin didn’t exactly endorse this, but he observed that prosecutors are saddled by a lot of rules that just don’t apply to the defense.

In practice, the defense is much less likely to have a motion against them on this basis than the prosecution. First, the prosecution is limited to meritorious motions. Second, the ability to make a prima facie case is easier with minority groups than it is with a majority group. Third, the usual resolution of successful motions – starting from scratch with a new jury – can delay things, which the prosecution is often less sanguine about than the defense.

But in theory, I’d prefer, as much as possible, parallel rules for jury selection.

Is anyone swayed?


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