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Culture, Cloaked in Mens Rea

Duke University School of Law
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  • Law
  • Law


Culture, Cloaked in Mens Rea Doriane Lambelet Coleman Culture, Cloaked in Mens Rea Proof beyond reasonable doubt of the mens rea or state of mind associated with a particu- lar crime is a requirement for the successful prosecution of all criminal defendants under our system of justice. In the legal jargon, it is part of the prosecution’s prima facie case. Concomitantly, criminal defendants may suc- cessfully challenge the case against them on the ground (among others) that the prosecution has failed to meet this requirement. In this con- text one of the essential remaining disputes is waged among legal scholars and practitioners about the propriety of the ‘‘cultural defense’’ in cases involving immigrant crime.1 Specifically, there is disagreement about the admissibility of evidence about immigrant culture and cultural practices in support of the argument that the defendant suffered from a form of cultural ‘‘di- minished capacity’’ or ‘‘insanity’’ at the time of the crime. There also is ongoing debate about the admissibility of such evidence in support of the affirmative defense of provocation. While the latter is technically not directed at mens rea, like diminished capacity and insanity, it is intro- duced to explain the defendant’s loss of control in the face of an extreme emotional disturbance. The South Atlantic Quarterly :, Fall . Copyright ©  by Doriane Lambelet Coleman. 982 Doriane Lambelet Coleman In support of the position that evidence about immigrant culture can and should be permitted to explain an immigrant’smental state or his or her loss of control, its proponents, especially practitioners, have suggested that cul- tural predispositions can and often do affect free will.Or, their colleagues in the academy argue that a sensitivity and even acquiescence to culture in this context is critical to fair results in criminal cases conducted in a pluralistic society. And some have taken a narrower and

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