Culture, Cloaked in Mens Rea

Proof beyond reasonable doubt of the mens rea or state of mind associated with a particular crime is a requirement for the successful prosecution of all criminal defendants under our system of justice. In the legal jargon, it is part of the prosecution’s prima facie case. Concomitantly, criminal defendants may successfully challenge the case against them on the ground (among others) that the prosecution has failed to meet this requirement. In this context one of the essential remaining disputes is waged among legal scholars and practitioners about the propriety of the ‘‘cultural defense’’ in cases involving immigrant crime.1 Specifically, there is disagreement about the admissibility of evidence about immigrant culture and cultural practices in support of the argument that the defendant suffered from a form of cultural ‘‘diminished capacity’’ or ‘‘insanity’’ at the time of the crime. There also is ongoing debate about the admissibility of such evidence in support of the affirmative defense of provocation. While the latter is technically not directed at mens rea, like diminished capacity and insanity, it is introduced to explain the defendant’s loss of control in the face of an extreme emotional disturbance.