When Cultural Tradition and Criminal Law Collide: PROSECUTORIAL DISCRETION in Cross-Cultural Cases

By Kenny, Karyn | Judicature, March/April 2009 | Go to article overview
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When Cultural Tradition and Criminal Law Collide: PROSECUTORIAL DISCRETION in Cross-Cultural Cases


Kenny, Karyn, Judicature


"[A prosecutor] ¿s the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a caminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer."

Berger v. U.S., 295 U.S. 78 (1935).

A prosecutor has an ethical obligation to bring criminal charges that have a proper basis in evidence and law. However, the goal of any prosecution must be to do justice, and not simply to "win" a case. In order to prop- erly execute this ethical obli- gation, a prosecutor must take into consideration any factor that will impact the prosecu- tion of the case. Prosecutors must also ensure they exercise the sensitivity necessary to serve the goal of achieving justice. This sensitivity should include an awareness of cutural defenses. Simply stated, a cultural defense is a defense that claims an individual's cultural background influenced his or her actions.

An examination of how cultural issues, in particular, cultural defenses, should, or should not, impact a prosecutor's decision-making process provides an interesting framework from which to explore the issue. Among the most powerful mechanisms a prosecutor possesses for ensuring justice is the ability to exercise discretion at various critical stages in a criminal proceeding. At all stages, his or her decisions both shape and influence the ultimate outcome of the case. Beginning with the first critical stage, the use of discretion during the charging decision, and ending with sentencing recommendations, the exercise of prosecutorial discretion is an essential and accepted component in our criminal justice system.

However, increasingly, prosecutors must confront cases in which they may be asked to view an offender's criminal act through the prism of cultural tradition. For the prosecutor who chooses to reject the impact of cross-cultural issues in a case, the analysis may begin and end with the axioms "when in Rome, do as the Romans do" or "ignorance of the law is no excuse." However, this response may result in the prosecutor's inability to ensure that justice is achieved. Simply stated, a prosecutor should take the time to understand all the nuances of a case, including an understanding of the impact of cross-cultural issues.

Cross-cultural issues will arise whenever a prosecutor handles a case in which cultural traditions impact either the behavior of a defendant or witness in a case. A cultural defense is raised when a defendant argues that the act, although illegal, was conducted in accordance with the individual's cultural traditions. As such, the act must be analyzed from this perspective when assessing culpability or imposing sentence. A compelling argument can be made that a prosecutor must factor in cross-cultural issues when exercising discretion, but with the understanding that cultural traditions do not always provide a mechanism for exoneration or mitigation.

Should a prosecutor take into consideration a defense firmly outside of the accepted justification/excuse framework of criminal law? Of course, the law does not obligate the prosecution to do so. As such, the decision ultimately may become one of individual choice, i.e., discretion. Another critical issue is the impact of the cultural tradition on the defendant's mens rea. To what extent, if any, does behavior in accordance with a tradition impact the defendant's level of culpability? Clearly, the prosecutor must be sensitive to this issue, but how should that assessment be carried out?

One suggested framework for analysis is a harm/culpability comparative model. In approaching such cases, the prosecutor will first determine if the expression of a cultural tradition has resulted in irreparable harm.

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When Cultural Tradition and Criminal Law Collide: PROSECUTORIAL DISCRETION in Cross-Cultural Cases
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