Cultural Factors in Criminal Defense Proceedings

Anthropologists' understandings of cultural factors affecting behavior can assist in the development of criminal defenses as a basis for establishing exculpating, extenuating, and mitigating circumstances. While the cultural defense is generally not recognized as a specific defense, cultural factors are admissible within traditional defenses. This article orients anthropologists to their potential contributions in criminal defenses by reviewing the legal context for establishing the relevance of cultural factors, with specific reference to the Model Penal Code. The article also reviews case materials where the author was appointed as an expert witness to illustrate how cultural factors may serve to establish mitigating circumstances during the preliminary, guilt and penalty phases of trials.