Provocation and the Reasonable Asian: Applying the Reasonable Person Standard to Asian Defendants Asserting the Provocation Defense

Abstract

This Article examines the criminal law defense of provocation in the U.S., which employs an objective reasonable person standard, as applied to recent Asian immigrants. It discusses approaches taken in other countries and describes the cultural defense. The Article concludes with different possibilities for a hypothetical Asian defendant who was provoked: Improving education about U.S. laws as a preventative measure, using expert cultural witnesses at trial, and taking the defendant’s characteristics into consideration during the sentencing stage.

A. Introduction

Q had four older sisters, and from an early age, he knew that he was his parents’ hope, their only hope, of passing on the family line. He felt this weight when his parents—who could barely afford to feed themselves—scooped extra food on his plate, or when his grandparents showed special affection for him and proudly told their friends about his accolades. His father would tell him often, and sternly, that honor was of the utmost importance, and he must never dishonor the family.

Q grew up and got married to the apple of his eye, and through extraordinary good fortune was able to move to America, the shining land of opportunity. Although he struggled to communicate in English and could only find menial labor, he took pride in the opportunity to provide for his wife and hopefully future children.

Shortly after his move, Q grew discontent. He lacked community and would frequently encounter racist slurs or derogatory remarks at work. His wife was constantly criticizing him, and they never seemed to have enough money. Though they had been trying for a long time, no children came. Q felt like the little honor he had left was slipping away.

Q grew suspicious of his wife when she started to go out more and put more effort into her appearance, but he pushed aside his suspicions when he found out she was pregnant. Q was overjoyed, and every night he would pray that it would be a son, a son, please let me have a son.

One night, he found a pair of men’s pants that did not belong to him in their bedroom and angrily confronted his wife in the kitchen. They argued, she said the child wasn’t his, and she smirked, saying he must have a fertility problem and that he wouldn’t be a good father anyway. In a fit of rage, feeling his honor was irrevocably stolen, Q grabbed a nearby kitchen knife and stabbed her. His wife didn’t make it, and neither did the child, who was later found to be a boy.

When Q later met with his attorney, he was told there was a defense he could raise to reduce his murder charge, and that the jury would decide whether a reasonable person would have been provoked if they had been in his situation. Q didn’t quite know what the word “reasonable” meant, but he knew what it meant to be an honorable person, and he assumed it was the same thing.

This fictional and overly simplistic illustration presents a question: How should the reasonable person standard be applied to recent Asian immigrants in cases of provocation? As the U.S. continues to grow in diversity, state and federal courts should contemplate how to best administer justice to non-Americans or recent immigrants who seek to use the provocation defense, which takes a rigid view on what the “reasonable person” would do. In this Article, I focus specifically on Asian defendants who employ the provocation defense in criminal cases. I will discuss the reasonable person standard, give a brief history of Asians in the U.S., explain the provocation defense and cultural defenses, draw on concepts from other countries, and list possible solutions in this area.

B. The Reasonable Person

The reasonable person standard derives from English common law, first appearing in Vaughan v. Menlove, where the defendant had “the misfortune of not possessing the highest order of intelligence” and negligently set his neighbor’s property on fire. ¹ The 1837 case R v. Kirkham introduced the idea of “reasonable control,” stating the law “will not indulge to human ferocity. It considers man to be a rational being, and requires that he exercise a reasonable control over his passions.”² The reasonable person standard has equivalents around the world and in many areas of law.³ R v. Welsh introduced the standard to the law of homicide in 1869, when “[t]he judge directed the jury as to provocation saying that in order to reduce the crime to manslaughter, there should have been serious provocation, ‘something which might naturally cause an ordinary and reasonably minded man to lose his self-control.’”⁴ The English test was purely objective and did not take any personal characteristics into account until 1978 when the House of Lords stated the jury should be instructed that they should consider “an ordinary person of the sex and age of the accused.”⁵

Today, the U.S. standard takes some additional factors into account, such as physical disability,⁶ but it is largely an objective test left to the finders of fact to apply.⁷ One study indicated that potential jurors judge reasonableness as a combination of statistical and prescriptive judgments between the average and ideal.⁸ This standard does not take ethnic or cultural factors into account, and no separate standard exists for immigrants. Instead, it seeks to be an objective standard of general application because a personalized standard would “swallow the rule.”⁹ Once defendants start introducing personal characteristics, there is “no satisfactory stopping place short of remitting the matter to the open-ended discretion of the jury.”¹⁰ When making determinations of what the reasonable person would do, the fact finder is not to put themselves into the actor’s actual shoes, complete with the actor’s background, beliefs, and biases. Rather than placing themselves in the shoes that have been through a long journey shaped by a plethora of influences, the fact finder is to take on a new identity and imagine themselves in the actor’s situational shoes: What would the mysterious fictional character, the reasonable “average” person, have done?

It has been suggested that this “average” person is “a particularly invidious kind of fiction that privileges the values of the dominant class.”¹¹ Consider, for example, high power distance index countries, which have cultures that strongly respect authority.¹² One could imagine a recent immigrant from a country that imposes harsh penalties for noncompliance with law enforcement acting as a “reasonable person” would behave in accordance with the norms of their home country rather than the “reasonable American” when confronted by U.S. law enforcement officials.

Employing an inflexible reasonable person standard becomes difficult when judging defendants from a variety of backgrounds and cultures, particularly when they use the defense of provocation, which is a partial defense to reduce a criminal conviction.¹³ Discussion about this standard in the context of provocation has existed for decades.¹⁴

In the 1980s, the reasonable person standard became more subjective in Australia as it incorporated attributes of the accused.¹⁵ However, this trend came to an end in 1990 when the High Court of Australia expressed concern about undermining “principles of equality” in Stingel v The Queen.¹⁶ In 1977, a dissenting Australian High Court judge in Moffa v The Queen wrote,

The objective test is not suitable even for a superficially homogeneous society, and the more heterogeneous our society becomes, the more inappropriate the test is . . . . It is impossible to construct a model of a reasonable or ordinary South Australian for the purpose of assessing . . . capacity to kill under particular circumstances.¹⁷

Twenty years later in Masciantonio v The Queen, another dissenting Australian High Court judge “would hold that relevant matters arising from the ethnic or cultural background of the accused can be taken into account in determining whether an ordinary person would have lost his or her self-control as the result of the deceased’s provocation.”¹⁸ Without incorporation of such characteristics, “the law of provocation is likely to result in discrimination and injustice.”¹⁹

The U.S. has millions of immigrants,²⁰ including over 14 million Asian immigrants as of 2019,²¹ and its diversity and blend of cultures is one of its strengths. However, with these strengths come challenges and differences. While immigrants retain parts of their cultures, they are oftentimes expected to assimilate and integrate into the U.S. culture. Asians, sometimes considered the “model minority” in the U.S., have been shaped by cultures that differ from the dominant U.S. culture in various ways. As the U.S. becomes increasingly diverse, the “average” and “reasonable” person will inevitably go through various transformations. This has ramifications for Asians from diverse cultural backgrounds.

C. Diverse Asians in the U.S. Grouped and Othered

Asians have had a rocky history in the U.S. In the 1850s, Chinese immigrants hoping for better lives came to work in the mining and railroad industries but faced anti-Chinese sentiments.²² Asians were also grouped with other minorities when convenient. In an 1854 case in which a white man was convicted of murder upon the testimony of Chinese witnesses, the Supreme Court of California held that Chinese immigrants were not allowed to testify in court because a statute that forbade a “Black or Mulatto person, or Indian . . . to give evidence in favor of, or against a white man” was sufficiently generic to include Chinese immigrants.²³ It found that “the word ‘white’ has a distinct signification, which ex vi termini, excludes black, yellow, and all other colors.”²⁴ Asians are sometimes grouped together as fungible, which “not only fails to take seriously the cultural and historical diversity among Asian ethnicities, but also more dangerously helps people to envision Asian Americans as a faceless subhuman caste.”²⁵ If Asians try to raise a cultural defense, they may encounter stereotyping of all Asians.

Restrictive immigration laws were often enacted in the U.S. during the 19th and 20th centuries, including the Chinese Exclusion Act of 1882.²⁶ The 20th century saw the internment of Japanese-Americans after the attack on Pearl Harbor and discrimination against Vietnamese-Americans after the Vietnam War.²⁷ Despite this history, Asian Americans have more recently been described as the “model minority” that has assimilated and succeeded in achieving the “American dream,”²⁸ which is argued to be the result of “equal parts truth, propaganda and self-enforcing prophecy.”²⁹ However, since COVID-19, there has been an increase in anti-Asian hate crime incidents: There was a 77% increase between 2019 and 2020.³⁰ The model minority reputation may apply when convenient—to point to ideal behaviors—but not actually provide a model when controversies arise. Asian Americans have been referred to as “a wedge to create infighting amongst communities of color who are all disadvantaged by white-dominated institutions and society.”³¹

Asians are not a homogenous group but immigrate from diverse cultural backgrounds with different laws, norms, and standards of reasonable behavior. They may be ignorant of many U.S. laws and social norms upon their arrival. What provokes a recent immigrant to lose their self-control may not provoke someone who has lived in the U.S. their entire life.

D. Provocation

An accused person’s mental state has determined their level of moral culpability for thousands of years.³² The foundations for the defense of provocation were laid in the 17th century as provoked killings could be mitigated from murder to manslaughter if they fell into one of four categories: Grossly insulting assault; seeing a friend, relative, or kinsman being attacked; seeing an Englishman unlawfully deprived of his liberty; or seeing a man in the act of adultery with one’s wife.³³ From late medieval times until the late 19th century, the English conception of honor underwent various changes.³⁴ Some theorists drew a distinction between “acquired” honor, which was proper reward for great deeds, and “natural” honor, which was negatively established, “simply one’s due if one had not failed in any principal virtue (particularly courage).”³⁵ The importance of honor and means of protecting it has played various roles in different cultures.³⁶ Grievous insults and grave provocations set off chain-reactions that are “affairs of social networks and groups,” particularly close patrilineal family members.³⁷

Provocation differs from other defenses, including self-defense or duress, in that if successfully pleaded, it merely reduces the crime rather than completely acquits the defendant.³⁸ It is an excuse defense, as “the defendant was not legally responsible for his or her action—his or her conduct was not a product of his or her meaningful free will.”³⁹ It has both a subjective component, whether the defendant was provoked, and an objective component, whether a reasonable person would have been provoked.⁴⁰ Rather than evaluating if a reasonable person would react in the same way to properly defend themselves, provocation asks if a reasonable person would also overreact, which does not warrant complete acquittal.⁴¹ It is based in large part on “the law’s concession to ordinary human frailty” that accounts for an ordinary person, who does not have a short nor saintly temperament, to become enraged or emotionally overcome.⁴² One author put it, “[t]o expect reasonable behavior in the face of perceived threat, terror and rage is itself a most unreasonable expectation.”⁴³ This defense reflects community norms or value judgments that assign levels of culpability to various circumstances.⁴⁴

The Model Penal Code⁴⁵ mitigates murder to manslaughter if it was committed “under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.”⁴⁶ The reasonableness is “determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.”⁴⁷ It comprehends the defendant’s “situation” in rape and murder cases, which can take cultural background into consideration.⁴⁸ A few categories that have fallen under provocation at common law are mutual combat, assault, and adultery.⁴⁹

Courts differ on whether illegal arrest, injuries to third parties, and words conveying mere information of the occurrence of a legally sufficient act of provocation rise to the level of adequate provocation.⁵⁰ In a 1955 case, a half-Mexican and half-Puerto Rican defendant shot his wife when his wife refused to have children with him out of fear they would be black and emphasized her remarks by jabbing her finger at his shoulder.⁵¹ The court ruled that this was not sufficient to free the defendant from the guilt of murder, as he was solely provoked by words and a “slight assault.”⁵²

In a 1991 Maryland case where a married couple had a strained relationship and the wife verbally insulted her husband, claimed she had filed charges against him, and stated that she did not love him, the husband killed her and was unable to use provocation to mitigate second degree murder to voluntary manslaughter.⁵³ Maryland’s Rule of Provocation requires 1) adequate provocation; 2) the killing occurred in the heat of passion; 3) the killing was in the “heat of passion” before there had been a reasonable opportunity for it to cool; and 4) there was a causal connection between the provocation, passion, and fatal act.⁵⁴ The court cited an earlier opinion in which it held that “[i]nsulting words or gestures, no matter how opprobrious, do not amount to an affray, and standing alone, do not constitute adequate provocation.”⁵⁵ However, words accompanied by conduct indicating a present intention and ability to cause bodily harm can be sufficient provocation.⁵⁶

The defense of provocation was more widely discussed in the United States decades ago, but discussion in this area has more recently been initiated elsewhere.⁵⁷ Other countries have various approaches.

I. Culture is Not Considered in Some Cases of Provocation

In evaluating whether a defense of provocation applies, Canadian courts first use an objective ordinary person test followed by a subjective test to try a defendant.⁵⁸ First, the “wrongful act or insult suddenly inflicted must have been such as would have deprived an ordinary person of the power of self-control” and second, “the accused acted on the sudden before there was time for his passion to cool, i.e., that his or her self-control was actually lost.”⁵⁹ Three Canadian cases illustrate how culture is largely not taken into account in cases of provocation.

In R. v. Nahar, the defendant claimed to have killed his wife in the heat of passion when he was provoked over disrespect and defiance during their marriage, which was contrary to the beliefs and customs of the Sikh community in which they were raised.⁶⁰ The trial judge determined that the witness the defendant called to give his opinion, a psychotherapist who was raised in the same village as the defendant, was not sufficiently qualified, and concluded that someone else faced with the same circumstances would not have lost his power of self-control, and the defendant’s appeal was dismissed.⁶¹

In R. v. Ly, the defendant had been born and raised in Vietnam and strangled his common law wife after suspecting her of adultery.⁶² He raised the defense of provocation, and the jury was properly instructed not to consider the cultural aspect of how an average Vietnamese male would have reacted.⁶³ The defendant claimed he lost “face” and “honor,” and the chairman of a Vietnamese refugees association was called to explain those comments.⁶⁴ The trial judge instructed the jury to decide on two questions, the first of which was an objective test about whether an ordinary person would have lost their self-control, and if so, then determining if the accused acted on his provocation before there was a time for his passion to cool, in which they could take the defendant’s background into consideration.⁶⁵ On appeal, the court affirmed the conviction and suggested that if a racial slur had been involved, “the fact that the husband was Vietnamese and came from a certain cultural background might have been relevant to the first question . . . but that is not the case.”⁶⁶

In R. v. Humaid, a Muslim defendant who stabbed his wife to death after an argument in which he believed she was cheating on him introduced expert testimony about Islamic culture, which places great significance on family honor and does not tolerate infidelity by women.⁶⁷ The couple were Canadian citizens but typically resided in the United Arab Emirates.⁶⁸ The trial judge held that this testimony was relevant to the subjective part of the provocation defense.⁶⁹ When asked for instructions on the “ordinary person,” the judge told the jury that the ordinary person “should be regarded as a person of the same age, sex and with the same marital background and relationship history as the appellant, but should not be taken as a person sharing the appellant’s religion, culture or customs.”⁷⁰ The defendant was convicted of first degree murder and appealed, arguing that he acted under provocation.⁷¹ The Court of Appeal for Ontario ultimately dismissed the defendant’s appeal, saying his beliefs that women are inferior to men are “antithetical to fundamental Canadian values” and that it can be argued,

[T]hat as a matter of criminal law policy, the “ordinary person” cannot be fixed with beliefs that are irreconcilable with fundamental Canadian values. Criminal law may simply not accept that a belief system which is contrary to those fundamental values should somehow provide the basis for a partial defence to murder.⁷²

Similarly, Germany’s Federal Court of Justice stated that,

[T]he standard for the evaluation of a motive . . . should be based on values of the legal community in the Federal Republic of Germany, before which court the defendant is tried, and not the views of an ethnic group, that does not recognize moral and legal values of this legal community.⁷³

The standard that does not take culture into account in provocation cases is present in Europe as well as in North America.

In the U.S., mere words, such as insults and racial slurs, are not enough. In a Report and Recommendation, a California magistrate judge stated that “the reasonable person standard is that of an ordinarily reasonable person, not an ordinarily reasonable person with a family history of prostitution and/or with a Mexican cultural background.”⁷⁴ In that 2010 case, the victim referred to the defendant’s mother as a prostitute and the defendant as “the son of [a] whore mother” before the defendant stabbed him in the neck with a broken bottle.⁷⁵ At trial, the defendant “presented expert evidence that an accusation of prostitution by one’s own mother in [his] Mexican culture is likely to result in violence.”⁷⁶ Witnesses testified about how “such insults were inflammatory in the Mexican culture” and “were considered to be one of the ‘highest insults’ among Spanish-speaking people in the United States.”⁷⁷ The magistrate judge recognized that while “accusing a person’s mother and other family members of engaging in prostitution would be a serious and inflammatory accusation in any culture,” there was no case holding “that cultural factors presented in this case would provide an objective basis for killing in the heat of passion.”⁷⁸

Racial slurs have not been sufficient to justify the use of deadly force in physical assault cases. In State v. McOsker, the 12th District Ohio Court of Appeals found that when the victim engaged in fights at a party and used racial slurs, “[t]he evidence of provocation presented by appellant was insufficient, as a matter of law, to support a conviction on aggravated assault.”⁷⁹ The court stated, “Although [the victim’s] use of racial slurs is deplorable, “[i]t is well-established that ‘words alone will not constitute reasonabl[y] sufficient provocation to incite the use of deadly force in most situations.’”⁸⁰ However, state legislation can allow racial slurs to be used as a mitigating factor in physical assault cases: “While mere words have traditionally been inadequate provocation to serve as a defense to a physical assault, racial slurs may qualify as the kind of provocation contemplated by Tenn. Code Ann. § 40-35-113(2).”⁸¹

II. Arguments for Recognizing Culture in Cases of Provocation

While some courts do not accommodate culture in cases of provocation, other courts have recognized the dangers of applying the reasonable person standard to diverse defendants claiming the defense of provocation. In an Australian case, the dissenting judge said,

[T]he law of provocation is likely to result in discrimination and injustice. In a multicultural society such as Australia, invocation [of the reasonable person standard] in cases heard by juries of predominantly Anglo-Saxon-Celtic origin almost certainly results in the accused being judged by the standard of self-control attributed to a middle class Australian of Anglo-Saxon-Celtic heritage . . . . [O]ne law of provocation for one class of persons and another law for a different class . . . must be the natural consequence of true equality before the law in a multicultural society where the criterion of criminal liability is made to depend upon objective standards of personhood.⁸²

The judge argued “that without significant subjectivization, the objective test is profoundly inegalitarian.”⁸³ Cultural and distinctive characteristics can come into play if someone is verbally provoked, such as if a Japanese American who interned in a detention camp during World War II experienced repeated racial slurs from the victim.⁸⁴ Those from different backgrounds may be much more likely to be provoked by insults that the objective reasonable person may not be provoked by. As one author put it,

[T]o insist that all these different ethnic groups conform to the one standard of behaviour set by the group having the greatest numbers (or holding the political reins of power) would create gross inequality. Equality among the various ethnic groups is achieved only when each group recognises the others’ right to be different and when the majority does not penalise the minority groups for being different.⁸⁵

Some courts consider ethnicity when considering who the “ordinary” person is. In R v Webb, the South Australian Full Court proposed that “the ordinary man is apparently an ordinary man of the accused’s ‘ethnic derivation.’”⁸⁶ Ethnicity, if taken into account, would assess the gravity of the provocation and account for the defendant’s response pattern.⁸⁷ The Indian approach also includes consideration of ethnicity; Indian courts have recognized that social class can influence the power of self-control of a reasonable person.⁸⁸ The Indian Supreme Court said in Nanavati v. State of Maharashtra, where a man murdered his wife’s lover, that “[n]o abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values . . . the cultural, social and emotional background of the society to which an accused belongs.”⁸⁹ As essentially homogeneous ethnic groups live in relative isolation from each other, they have recognized ethnic groups affect the self-control of an ordinary person.⁹⁰ In a Malaysian case in which the defendant was a lowly educated villager from Nepal and killed his employer, the court took his background into consideration “in order to put the stabbing of the deceased in its proper context and to explain why the [accused] lost self-control in the face of the words uttered.”⁹¹

Outside of courts, other sources have seen the value in considering cultural backgrounds. The Penal Code Review Committee in Singapore saw a case for considering ethnicity when determining the accused’s self-control, in light of how a person is molded by customs and traditions, which particularly affects new immigrants and foreign visitors.⁹² In a 1999 study with 124 Australians, non-Anglo-Australian respondents “were either more understanding and accepting of the customary practices of foreign cultures or considered the ethnicity of the defendant as part of their construction of the ‘ordinary person.’”⁹³

Perhaps U.S. courts should draw principles from these countries when interpreting the standard as something that can allow components of ethnicity in. Cultural defenses are an area where this sometimes occurs.

E. Cultural Defenses

Ethnicity is part of culture, which is “the full range of human values, behavior, and social structures indigenous to specific groups around the world that are passed on from one generation to the next.”⁹⁴ Culture plays a role in determining reasonableness, as it “greatly influences whether a certain set of beliefs, behaviors, or symptoms are considered pathological or merely lie along a spectrum of normality.”⁹⁵ Using cultural evidence in some cases ensures “the fair and equitable administration of the law to all and maintain[s] the principles of fairness and individualized justice that form the bedrock of the American legal system.”⁹⁶

A “cultural defense,” like a provocation defense, is “used to excuse, or partially excuse, criminal behavior.”⁹⁷ The two defenses overlap, particularly in the area of considering the reasonable person. There is no formal cultural defense, but a defendant may present cultural factors to excuse their behavior or mitigate culpability due to a lack of the requisite mens rea because the defendant, oftentimes a recent immigrant, acted according to the dictates of their culture.⁹⁸ It asks three questions: 1) Is the defendant a member of the ethnic group? 2) Does the group have such a tradition? 3) Was the defendant influenced by the tradition when he or she acted?⁹⁹ It does not give defendants license to claim they had a diminished capacity, such as a mental disorder, but provides another way for them to argue their cultural background has instilled a different conception of reasonableness that fundamentally differs from the U.S. one. It focuses on an abstract notion of culture rather than the defendant’s subjective understanding.¹⁰⁰ The cultural defense can be taken into consideration at three stages: The prosecutorial discretion stage, trial stage, and sentencing stage.¹⁰¹

Proponents of the cultural defense argue it outweighs any harm it would cause as it provides fairness to diverse defendants by preserving cultural heritage and preventing judicial bias by promoting individual justice and liberty.¹⁰² Cultural values, unlike religious values, do not have direct constitutional protection, so the justification for it lies in promoting equal citizenship and tolerating cultural differences.¹⁰³ In addition, the U.S. ratified the International Covenant on Civil and Political Rights (“ICCPR”) and the International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”).¹⁰⁴ Article 27 in the ICCPR outlines the right for minorities to enjoy their culture.¹⁰⁵ The CERD protects groups from discrimination, including discrimination that occurs from seemingly neutral policies.¹⁰⁶ The right to culture should receive protections, but not when it undermines more significant human rights.¹⁰⁷

Defense attorneys sometimes successfully use a cultural defense to show the defendant’s mental state or culpability. One such case was People v. Dong Lu Chen, in which a white anthropologist concluded the traditional Chinese values against adultery and the loss of manhood drove the defendant to kill his wife.¹⁰⁸ The judge granted probation rather than imposing a jail sentence and took cultural considerations into account.¹⁰⁹ He said the defendant was the “product of his culture” and the culture was not an excuse but “something that made him crack more easily. That was the factor, the cracking factor.”¹¹⁰ Trial judges typically have broad discretion in determining whether to allow expert testimony.¹¹¹

Another case is People v. Beong Kwun Cho, in which an expert in human development and family studies testified about Korean culture, including that suicide is considered shameful.¹¹² The defendant, a South Korean national, shot his childhood friend after the victim had repeatedly prodded him for over a year to help him commit surrogate suicide by staging his death to look like a robbery or accident.¹¹³ When the moment arrived for the defendant to shoot him, he hesitated, and the victim taunted him by telling the defendant he had raped his wife and intended to rape his daughter.¹¹⁴ The expert testified how South Korea “places great emphasis on social status and wealth” and “[w]hen two men have a close bond, the more dominant individual influences the weaker one.”¹¹⁵ In an unpublished opinion, the Orange County Superior Court judge mulled over the case for weeks on how to factor in the cultural defense, saying, “[i]t’s hard to imagine a person born and raised in American culture convincing a jury this was a voluntary manslaughter.”¹¹⁶ The judge ultimately found the mitigating and aggravating circumstances were about evenly balanced, so he sentenced the defendant to the mid-range prison term for voluntary manslaughter.¹¹⁷

Cultural defenses are used in other murder cases outside of the provocation defense. In one case, a Laotian refugee, was tried for murdering his wife and sought to use the defense of extreme emotional disturbance to mitigate the homicide.¹¹⁸ He attempted to include expert witness testimony about stress and disorientation that Laotian refugees undergo when attempting to assimilate.¹¹⁹ The trial judge did not allow the testimony because the experts lacked knowledge about the individual defendant.¹²⁰ However, the appellate court reversed it because excluding expert testimony does not depend on whether the witness has personal knowledge about the defendant.¹²¹ The court recognized the defendant “may have been deprived of an opportunity to put before the jury information relevant to his defense” and ordered a new trial.¹²² While the defendant in this case did not use a provocation defense but a defense of extreme emotional disturbance, it illustrates how expert witnesses can be used to testify about how culture may affect defendants.

In another case, a Chinese woman killed her son, who was born out of wedlock and mistreated by many family members.¹²³ She requested evidence on her cultural background and relationship to her culture to be considered in determining her mental state, but the trial court refused to use this instruction, as it “did not want to put the ‘stamp of approval on [the defendant’s] actions in the United States, which would have been acceptable in China.’”¹²⁴ The appeals court reversed the judgment on other grounds and stated it would “address the issue of the propriety of an instruction pinpointing the cultural background theory of defendant’s case . . . on retrial.”¹²⁵

While defendants sometimes successfully use a cultural defense, courts do not always allow it.¹²⁶ In addition, there are dangers in applying cultural defenses to certain situations.

I. Dangers in Applying a Cultural Defense

There are opportunities to abuse this defense if a defendant does not adhere to their cultural background.¹²⁷ Cultural claims should be verified to prevent fraud.¹²⁸ If a practice is no longer common in the home country, it may not be sufficient to use as an excuse.¹²⁹ Such a standard must adequately balance creating just outcomes for diverse defendants and preserving the effectiveness of the criminal system. A defendant must fit into at least one of four categories to use the defense: Their home country or culture distinguishes them from American society; their current attitudes and feelings about being a minority creates problems; the degree of their assimilation into the mainstream culture is extremely low; or the criminal act reflects important values from the defendant’s culture that should be protected.¹³⁰

An additional concern is the potential danger that can arise by reinforcing stereotypes about different groups. One writer described the white anthropologist’s description of “Chinese society” in People v. Dong Lu Chen as “neither substantiated by fact nor supported by his own testimony. The description was in fact his own American fantasy.”¹³¹ Domestic violence may be explained as “cultural” for Asian communities, “when a similar description is rarely given to domestic violence in the heterosexual white community.”¹³² A cultural defense could become “a vehicle for the crystallisation of common prejudices within legal standards or a way of justifying the judge’s position by accrediting it with a veil of objectivity.”¹³³

Just because some people in a group follow a particular tradition does not mean the whole community does, especially as customs evolve.¹³⁴ Slavery was once seen as “an integral part of southern ‘culture.’”¹³⁵ Defendants’ actions are defined through a group-based cultural identity.¹³⁶ A law professor said, “This kind of thinking reinforces patriarchal and racial stereotypes—which don’t even exist in China today. This is like saying, ‘My goodness, Americans lynch blacks, let’s let them do it,’ just because lynchings have happened in the past.”¹³⁷ Negative stereotypes about aggression, emotional volatility, and other traits may promote racism. For example, in Australia, Aboriginal people used to be regarded as having a lower capacity for self-control, which promoted a negative stereotype of them being at a lower order of the evolutionary scale.¹³⁸ However, their reactions could have been due to the racist and violent environment many of them grew up in.¹³⁹ A defendant may claim there are varying responses to grave provocation, and the jury could take the view that Aboriginal defendants may take longer to cool down after being provoked, such as in R v Nelson, a Northern Territory Supreme Court case.¹⁴⁰ A distinction which could reduce stereotyping can be drawn between the capacity for self-control and the response to being provoked; while both may lose self-control at the same time, those with different response patterns might take a longer time to cool down or otherwise react differently.¹⁴¹

Experts must reach a certain level of proficiency and not merely stereotype a culture based on their personal experiences. In a case where a South Korean corporation sued to recover for a breach of contract, the defendants claimed the transaction was a sham to cover up an investment program, and they relied on a non-Korean expert witness to testify about Korean law and companies, “particularly their alleged propensity to engage in fraudulent activity.”¹⁴² The witness lacked formal education or training in business or as a cultural expert, and his testimony was unreliable and based on his personal experiences and “hobby” of studying Korean business practices.¹⁴³ His “ethnic syllogism” was flawed because it “invited the jury to distrust [the corporation] by invoking an ethnic, national stereotype.”¹⁴⁴ However, this court conceded that while expert testimony about race, ethnicity, or nationality risks racial or ethnic stereotyping, bias, and xenophobia, it can be admissible, as it is not “inherently prejudicial.”¹⁴⁵ Some uses are more successful, typically when “there is convergence between dominant majority cultural norms and the cultural norms relied upon by the immigrant or minority defendant.”¹⁴⁶

There may also be a danger of stereotyping multi-faceted victims as provokers who are simplified for the purpose of creating a narrative. In People v. Dong Lu Chen, the victim was “flattened into the description ‘adulteress’” as she was portrayed as a woman who provoked her husband.¹⁴⁷ Some feminist scholars oppose defendants using a cultural defense, as it is often used by male defendants who have harmed female victims to condone their actions.¹⁴⁸ Men who kill their wives in response to verbal taunts or discovering their adultery get convictions of manslaughter instead of murder more easily than women who kill men who abused them over a long period of time.¹⁴⁹ Provocation appears to strongly favor “a particularly male conception of anger, in terms both of what constitutes gross provocation and what constitutes loss of self-control.”¹⁵⁰ Provocation could also happen in response to “humiliation, or revulsion, or some complex set of emotions.”¹⁵¹

In addition, an absolute cultural defense that subjects immigrants to different standards and allows immigrant defendants to essentially plead ignorance of the law would create an unfair system that may lead to immigrant victims receiving less protection than non-immigrant victims.¹⁵² Instead, it should be applied more narrowly to heat of passion defenses.¹⁵³

F. Possible Solutions

I. Improve Education About Laws

Increased education is a potential preventative measure before a death occurs. Sometimes, immigrants may not adequately learn U.S. laws. Although resources exist to educate immigrants and foreign visitors, the U.S. citizenship tests do not include a portion about U.S. laws.¹⁵⁴ Perhaps there should be more robust legal education for immigrants and foreign visitors, who may sometimes fall through the cracks and not adequately learn laws, norms, and customs through passive diffusion. For example, if someone arriving on a work visa comes from a culture in which authorities rarely get involved with domestic violence disputes, they may not realize that domestic violence is not acceptable in the U.S. until they find themselves arrested.

Before someone commits a crime, including murder in the heat of passion, they should have a reasonable opportunity to learn about U.S. laws as the reasonable person in the U.S. may substantially differ from the ordinary, reasonable, or average person in their country of origin. This would not mandate an additional test, unlike Germany’s mandatory integration courses for certain immigrants,¹⁵⁵ but legal aid and other resource centers should consider how to educate people not only about immigration policies but also how to engage with U.S. laws that differ at times from other countries. Highly publicized cases could also be effective; when there was a “marriage-by-capture” rape trial, many Hmongs in the Fresno area followed the case closely and “modif[ied] their traditions to conform with the United States legal system.”¹⁵⁶

Preventing crime is always preferable to addressing it once it occurs. In the area of provocation, education may not make a significant difference, but it may nonetheless give someone pause in a heated situation if they have thought about how U.S. laws and standards differ from their country of origin. Perhaps before Q killed his wife, he could have received more instruction about laws and norms in the U.S., including how murder is not acceptable even if he were to find out about his wife’s infidelity. Maybe this background knowledge would deter him for just long enough for his wife to leave the scene before she was killed. However, if he still killed his wife, he could next try to use expert cultural witnesses at trial.

II. Use Expert Cultural Witnesses at Trial

If an immigrant or foreign visitor is charged with murder and is raising a defense of provocation, they may be able to use expert witnesses to attest to cultural considerations that inform the application of the provocation defense, as the previously discussed defendants did in People v. Dong Lu Chen and People v. Beong Kwun Cho. Culture should not serve as a reductive explanation that the defendant acted within the confines of their culture, but it should explain their state of mind at the time of the act.¹⁵⁷

Because of the difficulties in interpreting culture and distorting knowledge, it may be helpful to establish a code of ethics for expert cultural witnesses.¹⁵⁸ The American Bar Association gives some guidelines, such as to be free of financial incentives,¹⁵⁹ and the United Kingdom Ministry of Justice has a rule that experts have a duty to the court that overrides their duty to either of the parties,¹⁶⁰ but it would be helpful to have a more targeted code of ethics specifically for expert cultural witnesses.

If a defendant is indigent, the court may be required to provide access to a cultural expert. 18 U.S.C. § 3006A requires district courts to provide adequate representation to those who are unable to afford it and includes a provision for “investigative, expert, or other services necessary for adequate representation.”¹⁶¹ The Supreme Court held that in a case where an indigent defendant’s sanity was in question, the State must provide access to a psychiatrist.¹⁶² When a defendant’s mental condition is “relevant to his criminal culpability and to the punishment he might suffer, the assistance of a psychiatrist may well be crucial to the defendant’s ability to marshal his defense.”¹⁶³

Q’s attorney could introduce expert witnesses about Q’s home culture and values to explain his situation, including the emphasis of honor, importance of carrying on the family line, and other relevant factors that the jury may not otherwise know. If the judge allowed this testimony, the jury could consider it when deliberating.

Another possibility is that juries can be instructed with more subjective phrasing, such as “could the actor have been fairly expected to avoid the act of wrongdoing?” in determining whether the accused was understandably aroused to the heat of passion.¹⁶⁴ If such an instruction was accepted, the jury could consider what could be reasonably expected of Q as someone who was heavily shaped by his cultural background. However, if the expert cultural witnesses were barred from being used at trial and the jury received a typical objective test and found Q guilty of murder, he could introduce evidence of his cultural background during sentencing.

III. Take the Defendant’s Characteristics into Consideration During Sentencing

If the defense fails and the sentence is not mitigated to manslaughter, the court may take culture into consideration when making sentencing determinations. It has been argued that provocation should be abolished in mitigating a charge and should merely be taken into consideration at sentencing.¹⁶⁵

When imposing a sentence, Congress prohibited taking race, national origin, and creed into consideration.¹⁶⁶ The Sentencing Reform Act of 1984 directed the United States Sentencing Commission to limit the use of personal characteristics when determining sentences.¹⁶⁷ However, courts are to consider multiple factors, including “the nature and circumstances of the offense and the history and characteristics of the defendant.”¹⁶⁸ Defendants are to be punished in proportion to their crime, and cultural factors are “most widely useful” when sentencing criminal defendants as opposed to during trial.¹⁶⁹ Forensic psychiatry literature has traditionally focused more on the concrete standards of competency to stand trial and the insanity defense, but in sentencing, parties can present more evidence, such as to explain motive, in order to help mitigate a sentence.¹⁷⁰ An evaluation that systematically takes culture into account may be instrumental in reaching a just sentence. The Cultural Formulation model takes cultural identity, cultural factors related to the psychosocial environment, and other cultural factors into account when assessing a patient.¹⁷¹ It was used in a case where the defendant, a 24-year-old Cambodian refugee, was charged with murder during a home burglary and ultimately received life without parole instead of the death penalty.¹⁷² During sentencing, “the full scope and power of a cultural evaluation can be brought most effectively to the attention of the court.”¹⁷³

Sentencing should avoid “unwarranted sentencing disparities” while also “maintaining sufficient flexibility to permit individualized sentences when warranted.”¹⁷⁴ The United States Sentencing Commission Guidelines Manual says courts should not give these factors “excessive weight” and generally not sentence outside the guideline range but use them “for other reasons, such as in determining the sentence within the applicable guideline range, the type of sentence . . . and various other aspects of an appropriate sentence.”¹⁷⁵ Sentencing guidelines are used to appropriately sentence defendants with reasonable uniformity and proportionality based on the severity of criminal conduct.¹⁷⁶ It considers the victim’s wrongful conduct, if significant, to reduce a sentence, including “[t]he proportionality and reasonableness of the defendant’s response to the victim’s provocation.”¹⁷⁷ During sentencing, Q’s attorney could then introduce the expert witnesses and cultural factors that shaped Q and led him to act as he did. Even if Q was charged with murder, the judge could use his or her discretion to select a lower sentence within the sentencing guidelines.

G. Conclusion

The U.S. should not demand complete assimilation and integration, and by doing so lose the beauty and strength of different cultures, but it should still uphold the values that its laws seek to protect. Balancing fairness by introducing cultural backgrounds with justice for victims may require introducing expert cultural testimony at trial and during sentencing.

The inflexibility of the reasonable person standard in cases of provocation is found not only in the U.S. but also around the world. Some countries have more subjective standards that take personal characteristics into account. While other countries do not have systems that can be perfectly transposed onto the U.S. system, the U.S. can nonetheless draw on other principles while seeking to improve education for immigrants, use expert witnesses at trial, and consider cultural characteristics during sentencing.

Q was eventually sentenced to either manslaughter or, in the alternative, murder with a sentence on the lower end of the sentencing guidelines. Perhaps he would spend his time in prison expanding his narrow conception of honor and seeking to adopt the best part of American culture while retaining the best parts of his Asian heritage. Perhaps he would use his years of freedom after to productively contribute to society. Maybe Q wouldn’t ever have the son he longed for, but he would father ideas, a unique blending of cultures, and a slightly bigger view of who the reasonable person really is.