Much has been written about the so-called cultural defense or, more accurately, the proffer of cultural evidence by a criminal defendant seeking to mitigate a charge or sentence. Many scholars support the admission of cultural evidence, but argue it should be limited to cases where such evidence is used to negate the mens rea element of the charged offense. Others feel that the admission of cultural evidence violates the principle of equal protection and favors immigrant and minority defendants over American defendants, and therefore the practice should be sharply circumscribed. Recently, a few legal scholars have issued calls for recognition of an official cultural defense.
In Cultural Convergence, Professor Lee neither defends nor criticizes the practice of using culture in the criminal courtroom. Rather, she seeks to illuminate why some uses of culture in the criminal courtroom seem to be more successful than others. Generally speaking, immigrants and minority defendants who seek to proffer cultural evidence in their defense are not successful. Either the judge deems the evidence irrelevant or the jury is not persuaded that the defendant's cultural background should be grounds for leniency. An extensive review of the cultural defense literature, however, suggests that immigrant and minority defendants who successfully introduce cultural evidence in their defense have one thing in common. The cultural norms underlying their claims are either similar to or complement American cultural norms, including retrograde, e.g., racist and sexist, norms. Borrowing from Derrick Bell's interest convergence theory, Lee argues that cultural convergence is one way to explain these results. Cultural convergence is the idea that the cultural defense claims of minority and immigrant defendants are more likely to receive accommodation when there is convergence between the cultural norms relied upon by the immigrant or minority defendant and American cultural norms.
This article proceeds in three parts. Part I provides the reader with 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 Derrick Bell's interest convergence theory has been applied by legal scholars. Part III demonstrates how Lee's theory of cultural convergence can help explain many of the successful uses of culture in the criminal courtroom.
GW Paper Series
George Washington University Legal Studies Research Paper No. 248; George Washington University Law School Public Law Research Paper No. 248
Cynthia Lee, Cultural Convergence: Interest Convergence Theory Meets the Cultural Defense?, 49 Ariz. L. Rev. 911 (2007).