Cultural Expertise and Socio-Legal Studies

Special Issue

Austin Sarat

• Publisher: Emerald Publishing Limited
• Year: 2019
• ISBN:
  9781787695177
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This special issue of Studiesin Law, Politics, and Society aims to foster a dialogue that is inclusive, constructive, and innovative in order to lay the basis for evaluating theusefulness and impact of cultural expertise in modern litigation. Itinvestigates the scope of cultural expertise as a new socio-legal concept thatbroadly concerns the use of social sciences in connection with rights and thesolution of conflicts. While the definition of cultural expertise is new, theconflicts it applies to are not, and these range from criminal law to civillaw, including international human rights. In this special issue, socio-legal scientists withinterdisciplinary backgrounds scrutinize the applicability of the notion ofcultural expertise in Europe and the rest of the World. Cases include murder, female genital mutilation, earthquake claims, Islamic law, underage marriages, child custody, adoption, land rights, and asylum. The authors debate on avariety of themes, such as legal pluralism, ethnicity, causal determinism, reification of culture, and the "culturalization" of defendants. The volume concludes with an overview of the ethical implications of the definitionof cultural expertise and suggestions for a way forward.

PART I
CULTURAL EXPERTISE WITH(OUT)
CULTURAL EXPERTS

FROM INVISIBLE TO VISIBLE: LOCATING “CULTURAL EXPERTISE” IN THE LAW COURTS OF TWO FINNISH CITIES

Taina Cooke

ABSTRACT

In this chapter, I examine the informal cultural expertise utilized in the District Courts and Courts of Appeal of two Finnish cities. I argue that the parties that serve as providers of “cultural expertise” are manifold and include eyewitnesses, interpreters, and even the courts themselves. I examine the challenges regarding the informal use of cultural expertise, drawing from debates that consider the relationship between an “insider-expert” and a “trained-expert” in acting as a cultural mediator.

Keywords Court ethnography; cultural expertise; cultural minorities; eyewitnesses; Finland; interpreters

INTRODUCTION

If we talk about people from, let’s say, the Middle East, we tend to have stereotypes about them that are based on our prejudices rather than actually knowing them and surely that applies ─ I mean the District Courts and the members of law courts are in no way cut off from the general life, it applies to them, too. […] It is clear that if we talk about, for example, homicide to which the defendant has pleaded not guilty and it is argued that the meanings of all the important factors would be completely different if the crime was committed among Finns than if it was committed among immigrants, then the only way [to find out about the crime] is to invite an expert witness to explain the cultural issues. However, in no trial, so far, have I invited [an expert witness] nor have I been to one where one was invited; although in principle it could happen in any case.

Interview (Lawyer)

The interview I conducted during a one-and-a-half-hour drive to the District Court in a nearby town with a Finnish criminal defense lawyer was a peculiar mix of cynicism and cautious optimism. The lawyer, who had practiced law for 23 years, was no stranger to clients from cultural minorities, and he seemed to become passionate when we first entered the discussion around “culture talk” in courts. He seemed to be of the opinion that information around different cultures and their practices could come in useful in some cases. Moreover, according to him, lawyers should play a key role in introducing such new ideas into a legal system that is often slow to change. Yet, in the next breath, he stated that he was frustrated with the rigidity of the system. Theoretically, one can try to raise all sorts of defenses, but it often feels like in the end nothing is accepted. I got the strong feeling that in the lawyer’s mind the idea of cultural expertise reflected the same frustration: a nice idea in theory but hardly applicable in legal practice.

This chapter discusses the potential of cultural expertise in the legal sphere and examines the complexities regarding the notion of culture. In order to address the cross-cultural challenges increasingly occurring in European and American legal practices, several scholars have examined the potential of so-called cultural expertise (Ballard, 2011; Good, 2011; Holden, 2011a; Menski, 2011; Vatuk, 2011). As Western legal practitioners are presently dealing with litigation involving cultural traits largely unknown to them, it has been suggested that further assistance from anthropologists or other cultural experts might come in useful (Holden, 2011a, p. 1; Renteln, 2004; Van Broeck, 2001; Winkelman, 1996). In Finland, expert witnessing was one of the focal points in a 2016 legal reform concerning the law of evidence; however, discussions on the role of cultural expertise appear to remain minimal. Despite the fact that culture or cultural expertise does not enjoy a formally recognized position in Finnish litigation, cultural argumentation does arise and receive attention in legal proceedings.

In this chapter, I will provide a brief introduction to the national legislative framework concerning expert witnessing in Finland. I will introduce the examples from my own data relating to the use of informal cultural expertise in the legal sphere and examine whose views and knowledge matter when seeking to verify traits regarding a person’s “culture” in court. Furthermore, I will analyze the discursive methods applied by the courts in their verdicts in making cultural information applicable for their use. I will look into the appointment of a community member as a cultural expert and consider the relationship between an “insider-expert” and a “trained-expert” in legal cases involving cultural minorities. Furthermore, I will speculate on the conceptual challenges that may follow when “culture” is harnessed for legal purposes. Cultural expertise is hardly objective and never unburdened by the vexed anthropological questions regarding the nature of culture, but its potential in steering the legal discussions regarding cultural minority members in a direction that is more transparent and informed is worth considering.

The treatment of culture in legal arenas is worth studying as there appear to be no shared practices or guidelines on how to deal with cultural arguments in court. It is important to shed light on “culture talk” that, nevertheless, does occur in court and potentially impacts the legal outcomes of cases involving cultural minority members. The level of awareness concerning cultural issues among legal professionals, in my experience, varies wildly. It can be argued that the assessments of cases involving cultural minority representatives tend to lend themselves to highly stereotypical and dichotomous notions in legal arenas, resulting in the renewal and validation of this simplifying imagery in the process (Noll, 2006; Spijkerboer, 2005). This chapter is an attempt to highlight some of the ways in which “cultural expertise” is now kept invisible in the legal sphere, yet still utilized by the courts. It will also look into some possible methods that could be of use in transforming “culture talk” and making it more explicit.

FINLAND AND CULTURAL EXPERTISE IN COURTS – A BRIEF OVERVIEW

The Finnish legal system can be regarded as a part of Nordic (or Scandinavian) law, which in turn is classified among the broader legal tradition of civil (or Roman-German) law (Husa, 2012, pp. 5, 12). Nordic law is close to civil law, but its lack of extensive private law codification as well as its pragmatic rather than highly theoretical nature distinguishes it from the traditional civil law legal family (Husa, 2012, pp. 8–12). In terms of Finnish criminal law and the criminal justice system, the Nordic view stresses a rational and humane approach (Melander, 2012, p. 238). Finland has one of the smallest prison populations in Europe, and there is a clear emphasis on a cost-conscious and preventative outlook. The role of expert knowledge in court has been rather ambiguous until the beginning of 2016 when legislation reforming the law of evidence was introduced. Before the reform, a distinction between an expert witness and a witness with expert knowledge was made: the former was deemed more credible and could only be named by the court, whereas the latter could be appointed by the prosecutor or lawyers (Rautio & Frände, 2016). At present, the division no longer exists, most likely resulting in the increased employment of expert witnesses and also homogenized credibility standards. Regardless of the recent heightened interest surrounding expert witnessing, however, the attention received by cultural expertise appears to be limited.

In some countries, such as South Africa and Australia, the long history of indigenous law has meant that cultural arguments have received recognition also in the national legal systems (cf. Bronitt, 2009; Carstens, 2009). Recognition of Finland’s indigenous population, the Sámi people, and their traditional rights and cultural status in the legal sphere is a sensitive issue (e.g., Heinämäki et al., 2017; Kokko, 2010). There is no far-reaching institution of a specific “Sámi law,” but rather the ambition in the Nordic countries has for centuries been to assimilate the indigenous population as part of the general national legislation and jurisdiction. Being recognized as Sámi, then, has historically not guaranteed access to special treatment in the eyes of the law. The legal status of the Sámi minority has improved during recent decades and their rights to “maintain and develop their own language and culture,” for example, was added to the Finnish Constitution in 1999 (§17). However, disputes over land rights in particular are ongoing and reflect the reluctance of the state to recognize the Sámi people as an indigenous population with clearly distinct special legal rights. Against this backdrop, it seems understandable that cultural expertise has not developed as a recognized feature of Finnish courtrooms so far.

According to my research data and several informal discussions with different legal professionals, cultural expertise is not commonly sought after in Finnish criminal cases involving cultural minority members, nor is there any established provider of such information generally known among legal professionals. This, however, does not mean that cultural arguments are absent from litigation. As I will demonstrate next, courts can place seemingly unbiased parties to the litigation, such as eyewitnesses and interpreters, into the roles of informal cultural experts. Sometimes, courts seem to merely rely on their own views when debating culture. Overall, it seems that cultural expertise does not find its way into Finnish courtrooms as much through the official channels as through the agency of informal “cultural-brokers.”

TALKING CULTURE IN COURT

The examples presented here serve to demonstrate some of the varied negotiations regarding cultural issues in criminal cases that have taken place in Finnish courts. All but one example are from cases in which I have participated myself: 35 in total, in the District Court and the Court of Appeal in one of Finland’s largest cities. The lengths of these trials have varied from approximately two hours to 15 days. The population of the city is predominantly Finnish (96% in 2015) yet the number of foreign nationals has increased steadily in recent years. The examples, while each relating to different crimes, represent the larger group of legal cases involving members from cultural minorities. The number of these cases has increased along with the related changes in population, yet they still display a clear minority of all the legal cases managed by the District Court and the Court of Appeal. For the cases I have participated in, I have made use of rich ethnographic data as well as the final court verdicts. The ethnographic data consist of extensive notes I have taken either during the trial or right after it, while the written verdicts are produced by courts and are often more concise in nature. For the one example that is not from a case dealt with in this particular city, I have only the written verdict. However, the length of the verdict, around 200 pages, as well as the heightened attention paid to cultural factors in it, make it a valuable source of data for research in cultural expertise. In addition to the court material, I have conducted five in-depth interviews (two prosecutors, a judge, an interpreter and a lawyer) to complement the data. All the quotes presented here are my translations from Finnish to English.

Eyewitnesses as Cultural Experts

Mr Amin and a Case of Attempted Manslaughter

A case, tried in spring 2016, involved a young Kurdish man, Mr Amin, who arrived in Finland in 2015 to seek asylum. He lived in a reception center with several other Kurds, with whom he often passed the time by playing pool in the basement of the building. One day, when a group of them were playing in the basement, two of the men, Mr Amin and Mr Rahimi, got into a fight. The situation escalated quickly: both of the men started verbally insulting the other’s mother and sisters, after which the fight turned violent. The rest of the group made an effort to calm the situation, but with little success as, in the end, Mr Amin stabbed Mr Rahimi with a pair of small scissors in the neck area several times. As a result, Mr Amin was remanded in custody until trial and Mr Rahimi survived with fairly minor injuries.

At the trial, both the prosecutor and Mr Rahimi’s lawyer asked the court to find Mr Amin guilty of attempted manslaughter whereas the defense insisted that Mr Amin had only committed an assault at most. The defense maintained that both parties were involved in a reciprocal assault and that Mr Amin had only used the scissors as a result of strong provocation on Mr Rahimi’s part. In order to determine whether the conviction would be attempted manslaughter or assault, the court had to scrutinize Mr Amin’s motives and decide if he was likely to have attempted to kill Mr Rahimi. In the process of examining Mr Amin’s mindset, a number of culture-specific features of the incident were brought up and received a fair amount of attention during the litigation.

In court, Mr Rahimi, Mr Amin, and a third Kurdish man, who was present at the time of the incident, all provided their oral testimonies. They shared similar views with regard to what triggered the violence, as they explained to the court that both parties were insulting each other’s family members and, as the witness stated, in their culture offending someone’s mother or sisters is the worst kind of offense, making it “a matter of honor.” Mr Rahimi seemed surprised about Mr Amin’s decision to attack him so violently and explained “We share a language and the same country, it’s not like he is an Arab or anyone like that. He is a Kurd and we understand each other.”

In order to scrutinize Mr Amin’s motives and the possible intention to kill, the prosecutor and Mr Rahimi’s lawyer were particularly interested in the death threats that were presented during the incident. The defense claimed that Mr Amin had threatened to kill Mr Rahimi in the process of the incident. Mr Amin was asked by the prosecutor detailed questions about the number and timing of the threat or threats: “How many times did you threaten to kill Mr Rahimi? Did this happen before, during or after the attack?” Mr Amin seemed confused about the level of interest in terms of verbal threats and could not provide particularly detailed responses. He also added that Mr Rahimi had, likewise, threatened to kill him. With the purpose of further clarifying the situation, the prosecutor also confronted the eyewitness about the nature of the threats. After several questions regarding the subjects and objects of the threats, the number of threats, and their timing, the witness also appeared perplexed. In the end, the witness decided to shed light on the affair and offered his interpretation of the situation. He stated that in their culture when someone threatens to kill another person, it is most often just “a habit” and does not indicate an actual desire to kill. The witness continued “I can give you an example. As children, when we played outside, mother would call to us, and she might shout ‘Come in or I’ll kill you!’ It’s just a habit, it doesn’t mean anything serious.”

In the end, Mr Amin escaped the charge of attempted manslaughter and he was convicted of a serious assault. The District Court sentenced Mr Amin to just under three years’ imprisonment, in addition to which he was required to pay damages. Later, the Court of Appeal accepted the District Court’s verdict, for the most part, but reduced the sentence by one year. It appears that the courts did take the cultural argumentation into account when assessing the incident as the District Court’s verdict states the following:

It has become clear from the plaintiff’s, defendant’s and witness’s narratives that both the defendant and the plaintiff have insulted each other’s close relatives. In addition to this, at least the defendant has told the plaintiff that he intends to kill him. Then again, it has been told that in the defendant’s and plaintiff’s culture claiming to kill someone without having a real intention to do so, is rather easily done. The court deems that the cultural background of the defendant and the plaintiff shall be taken into account when assessing the ...

Table of contents

• Cover
• Title Page
• Cultural Expertise and Socio-legal Studies: Introduction
• Part I Cultural Expertise With(Out) Cultural Experts
• Part II Sites of Cultural Expertise
• Part III Comparative Perspectives on Cultural Expertise
• Part IV Cultural Expertise in Non-European Contexts
• Part V Suggestions for A Way Forward