Utah Bar Journal

In Cultural Issues in Criminal Defense, the editor, Linda Friedman Ramirez, and a host of authors draw upon their varied linguistic, cultural, and legal experiences to explain why this one added fact may infuse this seemingly commonplace scenario with complexity.

Did the suspect knowingly and intelligently waive his Miranda rights? Or did his cultural background and lack of familiarity with the American legal system induce him to confess? Did his difficulty speaking English hinder his attorney-client consultations? Was he too embarrassed or proud to admit it? Should he have had an interpreter at the change of plea hearing? Without one, was his guilty plea really knowing and voluntary? Did he have an undiscovered cultural defense that mitigated his culpability? Are there unanticipated immigration consequences to his guilty plea?

Cultural Issues in Criminal Defense provides straightforward answers for these questions and many more. As someone who makes her living representing the indigent in criminal matters, I could dog-ear almost every page in this book.

Organized sequentially, each chapter outlines how to effectively represent a person from another culture, nationality, or ethnic background. Starting with the initial client interview and proceeding through each stage of the case to the petition for post-conviction relief, Cultural Issues in Criminal Defense skillfully identifies the unique processes and pitfalls that criminal defense attorneys face in culturally-diverse cases. It then provides basic guidance and resourceful suggestions on how to successfully navigate this difficult terrain.

In chapter one, for example, the reader learns how to harness the “uniquely valuable resources” that consulates can provide. If a criminal defense attorney contacts the consulate early, the consulate can “ensure that legal rights and options are explained in culturally-relevant terms” and can detect “symptoms of mental illness or concealed misconceptions…that may hinder the attorney-client relationship.” Thereafter, if the attorney builds a “close relationship” with the consulate, the consulate can help recover evidence from “foreign jurisdictions,” can “encourag[e] prosecutors to offer plea bargains,” and can submit “amicus curiae briefs in support of defense motions.”

Next, in chapter two, the reader learns the “critical role” that interpreters play in criminal cases. “In general, counsel should err on the side of utilizing an interpreter whenever a defendant or witness is Limited English Proficient.…” This is correct for the obvious reason that a defendant who speaks basic English may not be able “to understand the level of English used in a discussion of legal concepts.” It is also correct for the less obvious reason that counsel may mistakenly conclude that communication difficulties reflect “the client’s language limitations, rather than cognitive impairments, such as mental retardation.” Identifying the need for an interpreter is just the first step, however. The reader also learns how to find a qualified interpreter, how to use an interpreter effectively, and how to recognize and correct interpreter error.

Later, in chapter four, the reader learns that “[a]ny resolution of a criminal case, state or federal, felony or misdemeanor, short of an acquittal may have collateral immigration consequences.…” When representing a foreign national, therefore, attorneys should “think not only about obtaining the best possible outcome in the criminal case but also about the consequences to the client’s immigration status.” This may include such diverse duties as “[d]etermin[ing] whether the client is, was, or might be a U.S. citizen”; “[a]void[ing] admitting that the client is a drug addict or drug abuser”; and identifying alternative countries that “might accept the client” if he is afraid of being deported to his home country.

Each criminal matter is unique, of course, and will amass its own unique challenges. To help combat these challenges effectively and efficiently, Cultural Issues in Criminal Defense provides a convenient index and many succinct discussions, checklists, and warnings. It discusses, for example, extradition and how to obtain evidence from abroad. It teaches the reader to recognize and challenge racial profiling and selective prosecution. It identifies cultural issues that arise in motions to suppress, in jury selection, and at sentencing. It suggests ways to humanize a client and to use the client’s background to benefit his case. And it encourages the reader to research potential cultural defenses and explains how to raise these defenses at trial or how to present them as mitigating factors at sentencing.

In sum, Cultural Issues in Criminal Defense is a reference guide that admirably accomplishes its goal to help attorneys effectively represent culturally-diverse people. Throughout, it supplies a generous helping of case law and other research. But the devil is, as usual, in the details. And Cultural Issues in Criminal Defense makes no attempt to exhaust any of its numerous topics. This is particularly true in the “Immigration Consequences of Criminal Convictions” chapter. There, the introduction warns that the chapter “is meant to be an overview and starting place for [] research, but is not a substitute for researching and updating the caselaw applicable to any individual client’s predicament.” Cultural Issues in Criminal Defense does not leave the reader stranded though. Where the details surpass the purposes of the text, citations and addenda steer the reader toward other useful resources.

I note, however, that the citations and addenda rarely mention Utah. I suspect, therefore, that Utah attorneys relying on Cultural Issues in Criminal Defense will need to be particularly thorough when independently reviewing Utah law. See, e.g., State v. Rojas-Martinez, 2005 UT 86, ¶ 20, 125 P.3d 930 (holding that defense counsel provides ineffective assistance if counsel “affirmatively misrepresent[s] the deportation consequences of a guilty plea”).

I also note, briefly, that several conspicuous typos litter the book. While these typos suggest a lapse in the final editing process, they do not appear to expose any deeper failure in judgment or research.

At times, particularly in the sentencing chapters, this book will most assist attorneys who represent people facing federal criminal charges. But Cultural Issues in Criminal Defense will not gather dust on any criminal defense attorney’s shelf. It provides ideas, angles, and insights that will greatly assist any criminal defense attorney – and perhaps any other attorney – who faces the daunting task of guiding a person from another culture, nationality, or ethnic background through the American legal system.