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VOLUME 11 - CHAPTER 250
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250.8 Cultural Background As Relevant To Defense Theories
250.8.1 Cultural Background As Defense Theory
250.8.2 Culture As Relevant To Defendant’s Subjective Intent Or Mental State
250.8.3 Culture As Relevant To Objective Reasonableness Of Defendant’s Intent Or Mental State
250.8.4 Native American Cultural Defense
250.8.5 Cultural Defense As Relevant To Premeditation And Deliberation
250.8.6 Consideration Of Defendant’s Medication, Culture, Etc. In Evaluating Demeanor At Trial
250.8.7 Culture As Relevant To Heat Of Passion
250.8.8 Cultural Stereotypes Or Expectations As Basis For Challenging Eyewitness Identification
250.8.9 Failure To Present Evidence Necessary To Bridge A Culture Gap May Constitute Ineffective Assistance Of Counsel
250.8.10 Heat Of Passion: Consideration Of Defendant's Culture
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250.8.1 Cultural Background As Defense Theory
PRACTICE NOTE: It has been recognized that cultural background may be relevant to both the subjective mental state of the defendant as well as the objective reasonableness of that mental state. (See FORECITE National™ 92.7.3.15 [Cultural Background As Relevant To Premeditation/Deliberation] and FORECITE National™ 250.8.7 [Culture As Relevant To Heat Of Passion].)
Hence, when relevant the defense should have the right to advance a defense theory which includes consideration of the defendant's cultural background. (See e.g., FORECITE National™ 250.8.4 [Native American Cultural Defense].)
For example, equal treatment of ethnically diverse persons requires that if certain verbal provocations are sufficiently offensive in American culture to mitigate murder to manslaughter, the insults that are equally offensive in the defendant's culture should be treated as equally mitigating. Additionally, cultural background may also be the basis for a defense theory which challenges eyewitness identification. (See FORECITE National™ 31.6.7 [Cultural Stereotypes Or Expectations As Basis For Challenging Eyewitness Identification].)
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VOLUME 11 - CHAPTER 250
250.8.2 Culture As Relevant To Defendant’s Subjective Intent Or Mental State
PRACTICE NOTE: It has been recognized that cultural background may be relevant to both the subjective mental state of the defendant as well as the objective reasonableness of that mental state. (See FORECITE National™ 92.7.3.15 [Cultural Background As Relevant To Premeditation/Deliberation] and FORECITE National™ 250.8.7 [Culture As Relevant To Heat Of Passion].)
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250.8.3 Culture As Relevant To Objective Reasonableness Of Defendant’s Intent Or Mental State
See e.g., FORECITE National™ 250.8.1 [Cultural Background As Relevant To Defense Theories].
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250.8.4 Native American Cultural Defense [Reserved]
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250.8.5 Cultural Defense As Relevant To Premeditation And Deliberation
See FORECITE National™ 92.7.3.15 [Cultural Background As Relevant To Premeditation/ Deliberation].
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250.8.6 Consideration Of Defendant’s Medication, Culture, Etc. In Evaluating Demeanor At Trial
See FORECITE National™ 18.6.5 [Consideration Of Defendant's Culture In Evaluating Demeanor At Trial].
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250.8.7 Culture As Relevant To Heat Of Passion
PRACTICE NOTE: The defendant's cultural background is relevant on the issue of heat of passion. (People v. Wu DEPUBLISHED (CA 1991) 235 CA3d 614 [286 CR 868].) Therefore, the defendant should be entitled to have the jury instructed that it may consider such evidence in determining relevant mental states. (See e.g., Siripongs v. Calderon (9th Cir. 1994) 35 F3d 1308, 1316; Kwan Fai Mak v. Blodgett (9th Cir. 1992) 970 F2d 614, 618-19; People v. Aphaylath (NY 1986) 502 NE2d 998, 999 [reversible error to exclude expert evidence concerning stress and disorientation encountered by Laotian refugees in attempting to assimilate into American culture in support of defense of extreme emotional disturbance to mitigate homicide].)
See FORECITE National™ 18.6.5 [Consideration Of Defendant's Medication, Culture, Etc. In Evaluating Demeanor At Trial].
OPINION AVAILABLE: To read the Wu opinion, click here. [Opinion Bank # O-117].
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250.8.8 Cultural Stereotypes Or Expectations As Basis For Challenging Eyewitness Identification
See FORECITE National™ 31.6.7 [Cultural Stereotypes Or Expectations As Basis For Challenging Eyewitness Identification].
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250.8.9 Failure To Present Evidence Necessary To Bridge A Culture Gap May Constitute Ineffective Assistance Of Counsel
PRACTICE NOTE: See Caro v. Calderon (9th Cir. 1998) 159 F3d 1185.
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250.8.10 Heat Of Passion: Consideration Of Defendant's Culture
RATIONALE: Without an explanatory instruction the jury may not consider how the defendant's culture affected his or her reaction to the provoking behavior.
POINTS AND AUTHORITIES: It has been recognized that cultural evidence should be admissible for the purpose of explaining how a person of another culture might react violently to a word, gesture, or some other form of provocation that might not provoke a violent reaction in the average "white" person. (See People v. Croy (CA 1985) 41 C3d 1 [221 CR 592] [evidence of history of oppression of Native-American people by law enforcement received to explain Croy's state of mind and the reasonableness of his belief in the necessity of self-defense]; see also People v. Wu DEPUBLISHED (CA 1991) 235 CA3d 614 [286 CR 868] [defendant's cultural background relevant on issue of premeditation and deliberation]; Ha v. Alaska (AK 1995) 892 F2d 184, 195 [Vietnamese culture was a proper matter for the jury to consider in evaluating the defendant's self-defense claim].)
OPINION AVAILABLE: To read the Wu opinion, click here. [Opinion Bank # O-117].
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro].
SAMPLE INSTRUCTION:
The [defendant] [and] [or] [the prosecution] has introduced evidence that the defendant has a cultural background that may be unique to you. Such cultural evidence may be relevant to your evaluation of whether the provocation in this case was of such a character and degree as to cause a reasonable person in the position of the defendant to have lost self-control and to have acted upon impulse rather than deliberation and reflection. You should give this evidence whatever weight you think it deserves. However, you may not reject this evidence out of caprice or prejudice because the defendant has cultural beliefs or practices different from your own.
[Source: FORECITE National™.]