Cultural Issues in Criminal Defense, Second Edition
Linda Friedman Ramirez, Editor
Price: $150.00 774 pages. 1 Hardcover Volume. Index. Published July 2007.
ISBN-13: 978-1-57823-224-6 / ISBN-10: 1-57823-224-4
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Table of Contents
Summary Table of Contents
Preface – Cultural Vignettes: Walking a Mile in Someone Else’s Shoes
Timothy P. O’Toole
About the Editor
About the Authors
PART I - CLIENT INTERVIEW AND CASE EVALUATION
CHAPTER 1 - Consular Resources and Litigation Strategies
Mark Warren
§ 1.1 The Role of the Consulate in Criminal Defense
[a] — Basic Concepts
[b] — The Purpose and Scope of Consular Assistance
[c] — Limitations on Consular Assistance
§ 1.2 Accessing Consular Resources
[a] — Discussing Consular Assistance with the Client
[b] — Enlisting the Consulate as an Ally
[c] — Developing the Consular Relationship
[d] — Solving Problems
§ 1.3 Litigating Consular Treaty Violations
[a] — Past Litigation of Article 36 Violations
[b] — Understanding and Applying
Sanchez-Llamas v. Oregon
[c] — Investigating and Verifying Consular Treaty Violations
[d] — Crafting Suppression Motions
[e] — Securing the “Benefits of Consular Assistance” from a Trial Court
[f] — Conclusion
CHAPTER 2 - Use of Foreign Language Interpreters
Martha Carter-Balsk, Leslie Kay and Linda Friedman Ramirez
§ 2.1 The Basics of Interpretation
[a] — Purposes Served by Interpreters
[b] — Interpretation versus Translation
[c] — Oral Interpretation Modes
§ 2.2 Obtaining an Interpreter
[a] — Determining the Need for an Interpreter
[b] — Finding an Interpreter
[c] — The Interpreting Process
[d] — Interpreters for Hearing-Impaired Clients or Witnesses
§ 2.3 The Right to an Interpreter
[a] — The Constitutional Right to an Interpreter
[b] — The Statutory Right to an Interpreter
[c] — The Right to an Individual Interpreter
[d] — Challenging the Denial of an Interpreter on Appeal
§ 2.4 Interpreter Ethics
[a] — Interpreter’s Ethical Responsibilities
[b] — Attorney-Interpreter-Client Privilege
[c] — Interpreter Conflicts of Interest
§ 2.5 Interpreters at Trial
[a] — Interpreter Qualification Procedure
[b] — Qualifying the Interpreter for the Record
[c] — Making the Most Effective Use of the Interpreter
[d] — Challenging Interpretation Errors
[e] — Challenging Interpreter Bias
[f] — Interpreters and Jury Issues
§ 2.6 Interpreter Evidentiary Issues
[a] — Hearsay Issues
[b] — Translation of Court Documents
[c] — Translations of Transcripts
Appendix: Tape Transcription and Translation Guidelines
Maria Cecilia Marty
CHAPTER 3 - Language Proficiency and Its Relationship toLanguage Evidence
Margaret van Naerssen
§ 3.1 Determining Language Proficiency and Its Relation to Language Evidence
[a] — Second Language Proficiency as a Legal Concern
[b] — Myths
§ 3.2 Basic Concepts for Better Understanding the Field
§ 3.3 Linking Language Proficiency, Linguistic Evidence, and Legal Issues
[a] — Introductory Case: Language, Evidence, and Legal Issues
[b] — Communication in Alleged Criminal Activities
[1] — Intelligibility Issues – Fraud
[2] — Possible Authorship: Kidnapping (Ransom Notes)
[3] — Possible Authorship—Scandal and Hoax
[c] — Communications with Law Enforcement
§ 3.4 Interpreting Needs: Attorney-Client vs. Courtroom
[a] — Importance of “Getting It Right” Early On
[b] — Interpersonal and Formal Court Communications
§ 3.5 Working with an Expert
§ 3.6 Conclusions
Acknowledgements
References
Appendix A: The Use of Interpreters in Investigation and Interview
Appendix B: Annotated Checklist on Language Assessment and Experts
Appendix C: First Language Determination and Asylum
CHAPTER 4 - Immigration Consequences of Criminal Convictions
Tova Indritz and Jorge Baron
§ 4.1 Requirements to Advise a Defendant of Immigration Consequences
§ 4.2 Immigration Status
[a] — Citizenship
[b] — U.S. Citizenship by Birth
[c] — U.S. Citizenship by Acquisition at Birth Abroad
[d] — Derivative Citizenship
[e] — Former U.S. Citizenship
[f] — Proof of Immigration Status
[g] — Previous Immigration Actions
§ 4.3 Types of Adverse Immigration Actions
[a] — Removal
[b] — Voluntary Departure
[c] — Indefinite Detention
§ 4.4 Grounds for Inadmissibility and Deportation
[a] — Grounds for Inadmissibility
[b] — Grounds for Deportation
[c] — The Meaning of “Conviction”
[1] — What Constitutes a Conviction?
[2] — The Record of Conviction
[3] — When a Conviction Is Set Aside
[A] — Rehabilitive set-asides
[B] — Substantive or procedural bases for setting aside a conviction
[4] — Pardons
[d] — Crimes of Moral Turpitude
[e] — Meaning of a “Single Scheme of Misconduct”
§ 4.5 Aggravated Felonies
[a] — History of the Definition of an Aggravated Felony
[b] — Current Definition of “Aggravated Felony”
[c] — Consequences of Being an Aggravated Felon
§ 4.6 Possible Remedies and Relief
[a] — Cancellation of Removal
[b] — General Waiver
[c] — Waiver of Fraud or Misrepresentation
[d] — Waiver for Smuggling Immediate Family
[e] — Alien Informant Waiver
[f] — Battered Spouse or Child Waiver
[g]— Asylum, Withholding of Removal, and Relief under the Convention against Torture
[h]— Judicial Recommendations against Deportation
[i]— Pardons, Expungements, and Vacated Convictions
§ 4.7 Issues of Federal Jurisdiction to Review Removal Orders and Retroactivity Issues
[a] — Federal Jurisdiction to Review Removal Orders
[b] — Retroactivity of Ban on § 212(c) Relief for Aggravated Felons
§ 4.8 Federal District Judge as Immigration Judge
[a] — Immigration Jurisdiction
[b] — Immigration Relief as Part of Judicial Removal Procedure
[c] — Deportation as a Condition of Supervised Release Is No Longer Allowed
[d] — DHS Consent Required
§ 4.9 Impact of Immigration Issues on the Service of a Sentence
[a] — Immigration Detainers
[b] — Treaty Transfers
[c] — Early Deportation for State and Federal Prisoners
§ 4.10 Creative Ideas for Avoiding or Mitigating Immigration Consequences
[a] — Ideas Concerning Offense of Conviction
[b] — Ideas Concerning the Sentence to be Imposed
[c] — Ideas for Post-Conviction Relief
[d] — Ideas Concerning Other Matters
Appendix I: Understanding Your Client’s Immigration Status
Appendix II: Requirements to Acquire Citizenship at Birth Abroad under Relevant Statues
Appendix III: Derivative Citizenship Statues and their Applicability
PART II – PRETRIAL PRACTICE
CHAPTER 5 - Legal Challenges in Extradition Cases
Linda Friedman Ramirez
§ 5.1 Defending an Extradition from the United States
[a] — Initiation of Extradition
[b] — Extradition Hearing
[c] — Extraditable Offenses
[d] — Dual Criminality
[e] — Jurisdictional Theory
[f] — Probable Cause
[g] — Political Offense Exception
[h] — Double Jeopardy or Non Bis in Idem
[i] — Humanitarian Exception
§ 5.2 Defendants Extradited to the United States
[a] — The Specialty Doctrine
[1] — Specialty as Domestic law
[2] — Standing
[3] — Specialty Provisions
[4] — Specific Challenges
[A] — New or Added Charges
[B] — Conspiracy, Overt and Predicate Acts
[5] — Specialty and Admission of Evidence
[6] — Redaction of Indictment
[b] — Dual Criminality
[c] — Double Jeopardy
CHAPTER 6 - Federal Law Issues in Obtaining Evidence Abroad
Linda Friedman Ramirez
§ 6.1 Due Process Issues
[a] — Foreign National Witnesses Outside the United States Are Not Subject to Subpoena
[b] — Defendant’s Inability to Subpoena a Foreign Witness Does Not Implicate the Sixth Amendment
[c] — No Violation of Fifth Amendment Right to Due Process Because of “Venue”
[d] — Due Process Violation if Government Prevents Witness from Testifying or Failure to Make Good Faith Effort
§ 6.2 Letters Rogatory or Judicial Assistance in Obtaining Evidence
§ 6.3 Mutual Legal Assistance Treaties and Executive Agreements
§ 6.4 Obtaining Foreign Documents and Records
§ 6.5 Admission of Foreign Documents and Records
[a] — Foreign Public Records
[b] — Records Requiring Authentication
[c] — Foreign Business Records
§ 6.6 Witness Entry to the United States
[a] — Defense Witness Willing and Able to Travel to the United States
[b] — Witness Incarcerated Abroad
§ 6.7 Rule 15 Depositions
[a] — Preserving Foreign Witness Testimony
[b] — Defendant Must Demonstrate Exceptional Circumstances
[c] — Witness Must Be Unavailable
[d] — Testimony Must Be Material
[e] — Countervailing Factors
§ 6.8 Video-Conferenced or Satellite Testimony of Witnesses
[a] — Defense Use of Video-Conferenced Witness Testimony
[b] — Use of Rule 15 Depositions or Video-Conferenced Testimony by the Prosecution
CHAPTER 7 - Cultural Issues in Fourth Amendment Motions to Suppress
Brenda Horne and Rene L. Valladares
§ 7.1 Extraterritorial Law Enforcement Activities
[a] — Forcible Abductions
[b] — Joint Venture Doctrine
§ 7.2 Fourth Amendment Protections for Citizens and Aliens
[a] — Protections for United States Citizens in Extraterritorial Searches
[b] — Protections for Non-United States Citizens in Extraterritorial and Territorial Searches
[1] — Protections for Noncitizens in Extraterritorial and Territorial Searches
[2] —Exterritorial Protections for Noncitizens
[3] —Protections for Undocumented Aliens in Searches within the United States
§ 7.3 Fourth Amendment Protections at the Border and Its Equivalents
[a] — The Border Search Doctrine
[b] — Routine vs. Nonroutine Searches and Seizures
[1] — Functional Equivalents of The Border Search Doctrine
[2] — Extended Border Doctrine
§ 7.4 Checkpoint Stops and Searches
[a] — Roving Patrols Stops and Searches
[b] — Searches at Sea
[c] — Searches of International Mail
[d] — Ethnicity, Reasonable Suspicion, and Probable Cause
[e] — Cultural Factors Relevant to Seizure
§ 7.5 Culture and Consent to Search
[a] — Immigration Issues and the Fourth Amendment
[1] — Immigration Consensual Encounters, Factory Surveys and Workplace Seizures
CHAPTER 8 - Cultural Issues in Motions to Suppress Statements
Floralynn Einesman
§ 8.1 Applicability of Miranda Rights
[a] — Citizens and Lawfully Admitted Aliens
[b] — Undocumented Aliens
[1] — Non Resident Aliens Interrogated Outside the United States
[A] —Interrogation by Foreign Police
[B] —Interrogation by U.S. Law Enforcement
[2] — Non-Resident Aliens Physically Present in the United States
§ 8.2 Custody
[a] — The Meaning of Custody
[b] — The Refined Objective Standard for Custody
§ 8.3 Interrogation
[a] — The Meaning of Interrogation
[b] — The Border Exception
[c] — The Routine Booking Question Exception
§ 8.4 Warnings
§ 8.5 Assertion of Rights
[a] — Right to Remain Silent
[b] — Fifth Amendment Right to Counsel
[c] — Sixth Amendment Right to Counsel
§ 8.6 Waiver of Rights
[a] — Knowing, Voluntary, and Intelligent Waiver Standard
[b] — Cultural Factors in the Validity of Miranda Waiver
§ 8.7 Voluntariness of Statement
[a] — The Voluntariness Standard
[b] — Culture as an Element in an Involuntary Confession
CHAPTER 9 - Selective Prosecution
Jill Basinger
CHAPTER 10 - Racial Profiling
Jill Basinger and William Buckman
PART III – TRIAL PRACTICE
CHAPTER 11 - Raising Cultural Defenses
Alison Dundes Renteln
§ 11.1 Excuse Defenses
[a] — Insanity
[1] — The Cognitive Insanity Defense
[2] — The Volitional Insanity Defense
[3] — Automatism
[4] — Battered Women Defense
[5] — Culture-Bound Syndromes
[b] — Duress
[c] — Diminished Capacity
[d] — Provocation as Partial Excuse
§ 11.2 Justification Defenses
[a] — Self-Defense
§ 11.3 Defenses Relating to Offense Elements
[a] — Mistake of Fact
[b] — Lack of Specific Intent
§ 11.4 De Minimis Offenses
§ 11.5 Formal Cultural Defense
[a] — Child Abuse
§ 11.6 Substantive Cultural Defenses Based on Constitutional Principles
[a] — Religious Defenses
[b] — Equal Protection
§ 11.7 Arguments for the Cultural Defense
§ 11.8 Strategic Considerations
CHAPTER 12 - Using Cultural Experts
James G. Connell, III
§ 12.1 Uses of Cultural Experts
[a] — Defense Uses for Cultural Experts
[b] — Government Uses of Cultural Experts
[c] — Finding Cultural Experts
§12.2 Admissibility of Cultural Expert Testimony under Daubert
§12.3 Admissibility of Cultural Expert Testimony under Frye
§12.4 Assistance to the Trier of Fact
[a] — “Fit” under Daubert
[b] — Invading the Province of the Jury
[c] — Ultimate Issue of Fact
§12.5 Qualifications
§12.6 Other Evidentiary and Constitutional Issues
[a] — Relevance
[b] — Probativeness and Prejudice
[c] — Injection of Ethnicity
§12.7 Funding Cultural Experts
[a] — Constitutional Bases
[b] — Statutory Bases
CHAPTER 13 - Cultural Issues in Jury Selection
James G. Connell, III
§ 13.1 Challenges to the Jury or Grand Jury Venire Based on Discrimination
[a] — Sixth Amendment Fair-Cross-Section Challenge
[1] — The Distinctive Group Requirement
[2] — The Fair and Reasonable Representation Requirement
[3] — The Systematic Exclusion Requirement
[4] — Rebutting the Prima Facie Case
[b] — Equal Protection Challenge
[1] — The Cognizable Group Requirement
[2] — Substantial Underrepresentation in the Venire
[3] — Opportunity for Discrimination
[4] — Rebutting the Prima Facie Case
[c] — Federal Statutory Challenges
§ 13.2 Voir Dire
§ 13.3 Peremptory Challenges
[a] — Batson’s First Step: Establishing the Prima Facie Case
[1] — The Cognizable Group Requirement
[2] — Inference of Discrimination
[b] — Batson’s Second Step: Rebutting the Prima Facie Case
[c] — Batson’s Third Step: Proof of Purposeful Racial Discrimination
CHAPTER 14 - American Indian Culture and Federal Crimes
Jon M. Sands & Caitlin Bales
§ 14.1 Historical Background
§ 14.2 Criminal Jurisdiction in Indian Country
[a] — Jurisdictional Framework
[b] — Who Is an Indian?
[c] — Indian Country
[d] — The Major Crimes Act
[e] — The “Peculiarly Federal” Exception
§ 14.3 Double Jeopardy Issues
§ 14.4 Sentencing Issues
[a] — Guidelines Applicability
[b] — Criminal History
[c] — Departures for Extraordinary Circumstances
[d] — Death Penalty and Three Strikes
§ 14.5 Case Illustrations of Indians in Federal Court
[a] — Trial
[1] — Mr. C.
[2] — Mr. B.
[3] — Mr. Y.
[4] — Mr. T.
[b] — Sentencing
[1] — Mr. Y.
[2] — Mr. S.
[c] — Cultural Syndromes
[d] — Physiological Differences
CHAPTER 15 - Defending The Crime of Illegal Entry and Reentry
Robert McWhirter
§ 15.1 Introduction
§ 15.2 Elements and Statutory Application
[a] — The Elements of Illegal Entry
[b] — The Elements of Reentry after Deportation
[c] — Illegal Entry vs. Reentry after Deportation
[d] — Right to Counsel with a Misdemeanor 8 U.S.C. § 1325 Charge
[e] — Reentry after Deportation: The Beginning and Ending of the Crime
[f] — Reentry after the Number of Specified Years in the Deportation
[g] — U.S. Citizens
§ 15.3 Detention Issues
[a] — Bail for Alien Defendants
[b] — “Detainers” and “Holds”
[c] — Immigration Judges and Denying Release
[d] — Benefits to ICE Custody
[e] — Aggravated Felons and Release
§ 15.4 Plea Bargaining and Proceedings
[a] — Standard Pleas in Immigration Cases
[b] — Discrepancies between Districts and Plea Procedures
[c] — Other Plea Resolutions
[d] — U.S. Attorney and Binding ICE
[e] — Magistrates Taking Pleas
§ 15.5 Trial Preparation and the Preliminary Hearing
[a] — Investigating Criminal Immigration Cases
[b] — Information from Immigration Court
[c] — Preliminary Hearings
[d] — Records of Prior Criminal Convictions
§ 15.6 Pretrial Motions
[a] — Motions to Suppress
[1] —Statements
[2] —Defendant’s Body/Identity
[b] — Motions to Dismiss
[1] —Statute of Limitations and Speedy Trial
[2] —Collateral Attacks on Deportation
[A] —Legal Basis
[B] —Establishing the Collateral Attack
[i] — Procedural Defect
[ii] — Prejudice
[C]— Exhaustion of Administrative Remedies
[D]— In Absentia, Reinstated, Administrative, and Expedited Deportations
[E]— Constitutional Issues, Disparity, Treaty Violations
§ 15.7 Trial Issues
[a] — Criminal Intent (Mens Rea)
[b] — Evidentiary Issues
[c] — Alienage Element
[d] — The “Found In” Element
[e] — Attorney General’s Consent to Reenter
§ 15.8 Trial Defenses
[a] — No “Entry”–Free from “Official Restraint”
[b] — Good Faith Defenses
[c] — Challenging the Deportation Documents
[d] — Duress, Necessity, Corpus Delicti, Insanity
§ 15.9 Sentencing
[a] — The Guidelines Today
[1] — Offense Level Calculations
[A]—General Application Issues
[B]—Offense Levels for Priors
[i]— The 16-Level Increase
[ii]—The 12-Level Increase
[iii]—The 8-Level Increase
[iv] —The 4-Level Increase
[2] — Criminal History
[3] — Multiple Punishment Issues
[4] — Supervised Release Issues
[b] — Departures from the Sentencing Guidelines
[1] — In General
[2] — Specific Types of Departures
[A] — Cultural Assimilation
[B] — Criminal History and Mitigating Nature of Prior
[C]— Consent to Deportation
[D]— Treatment of Aliens in the Federal Bureau of Prisons
[E] — Disparity in Plea Practices
[F] — Good Motives or Necessity
[G]— Credit for Time Served Immigration Detention
[H]— Pre-Indictment Delay
PART IV - POST TRIAL PRACTICE
Chapter 16 - Cultural Issues in Sentencing
Marcia G. Shein
§ 16.1 Culture-Related Sentencing Strategies
[a] — Strategic Considerations
[b] — Criminal Behavior Accepted or Expected in the Defendant’s Culture
[c] — Stronger Cultural Motive for the Crime
[d] — Additional Punishment from the Defendant’s Community
[e]— Immigration Consequences
[f] — Defendant’s Unusual Behavior at Sentencing
§ 16.2 Basic Structure of the Federal Sentencing Guidelines
§ 16.3 Ethnicity versus Cultural Heritage
§ 16.4 Downward Departures under the Federal Sentencing Guidelines
[a] — Overview
[b] — The Importance of § 5H1.10
[c] — Mental and Emotional Conditions
[d] — Family Ties and Responsibilities, and Community Ties
[e]— Lesser Harms
[f] — Coercion and Duress
[g]— Immigration Consequences
[h]— Combination of Circumstance
[i]— Cultural Assimilation
§ 16.5 Arguing 18 U.S.C. § 3553 Sentencing Factors
§ 16.6 Probation/Supervised Release
Chapter 17 - Appeal and Post Conviction Review
Timothy P. O’Toole
§17.1 Explaining the Appellate and Post-Conviction Processes
[a] — The Right to Appeal and the Filing of the Notice of Appeal
[b] — The Client-Contact Letter
[c] — The In-Person Meeting
[d] — Client Involvement
[e] — Post-Conviction Review
[f] — Possible Habeas Corpus Pitfalls: Exhaustion, Statutes of Limitations and Abuse of the Writ
§17.2 Waivers of Appeal
§17.3 Ineffective Assistance of Counsel
[a] — Basis for Ineffective Assistance of Counsel Claims
[b]— Application of the Strickland Standard
[c] — Failure to Raise a Cultural Issue at Trial
[d] — Failure to Obtain Proper Interpretation Services
[e] — Failure to Advise of Immigration Consequences
§ 17.4 Challenging Guilty Pleas
[a] — Whether to Challenge a Guilty Plea
[b] — Knowing Nature of the Plea
[c] — Voluntariness of Plea
Index