It is difficult to litigate any complex trial without the use of
experts. As culture has become more of an issue in criminal trials, both
prosecution and defense counsel have turned to experts to assist them
in sorting out language and culture issues. This chapter will explain the
law surrounding the use of cultural experts, and suggest strategies for
having defense experts admitted and prosecution experts excluded.
§ 18.1 Uses of Cultural Experts
a) Defense Uses for Cultural Experts
Of course, the possible uses for experts are limited only by the law
of relevance and the imagination of counsel. In pretrial proceedings,
attorneys have used experts to explain the defendant’s command of
English and the importance of cultural factors in a defendant’s consent
to a search or other waiver of rights.1 Experts may also play a part in
pretrial motions or at trial in explaining the issues involved in a crosscultural eyewitness identification.
Attorneys have used experts for numerous purposes at trial.
Especially in a case where a defendant’s words establish intent or
another element of a crime, an expert may explain the language used
by a defendant within the appropriate cultural context.3 If relevant, an
expert may provide background on a culture to explain unusual actions
by witnesses,4 either to attack the credibility of prosecution witnesses5
or to explain the specific actions of the defendant as the result of
cultural factors.6 Many attorneys have used experts to assist in