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Introduction to a Forensic Cultural Anthropology in the United States Legal System

 

Copyright © Allen C. Turner 1999
turner@attorney.sbcba.org

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First posted: April 5, 1999; Latest amendment September 23, 2005

Reprinted from The American Journal of Trial Advocacy Vol. 16:2 Winter 1992 "Prolegemon to a Forensic Cultural Anthropology"

Note: On first posting, some corrections have been made to the printed version. We retain page entries from the priterd version for citation reference. Footnote are bookmarked. - Ed.

AUTHOR'S NOTE TO THE ANTHROGLOBE EDITION: "The primary audience for this article is the litigating trial attorney. It is of interest to anthropologists who may need to demonstrate to attorneys what they (can) do. A converse article should be written by and for forensic ethnologists."

Table of Contents

I. Introduction
II.The Anthropological Underpinnings of Jurisprudence
III.Would Holmes Recommend Anthropology Today?
IV. Forensic Applications
V. Procedural Issues in Forensic Anthropology
VI. Anthropologists at Work
VII. Finding a Forensic Cultural Anthropologist
VIII. Conclusion
Footnotes and References

I. Introduction

Over a century ago, Justice Oliver Wendell Holmes admonished would-be attorneys:

All that life offers any man from which to start his thinking or his striving is a fact...And your business as thinkers is to show the rational connection between your fact and the frame of the universe. If your subject is law, the roads are plain to anthropology, the science of man... (1)

What was the anthropology of the late nineteenth century that Holmes indicated would set lawyers on its path? What does the anthropology of today offer today's trial attorney? These are the focal questions of this article.

The ambitious goals of advocating an alternative sociological model of justice and of reconciling thediversity of the world's legal systems have already been addressed (2). This article considers the more modest goal of examining forensic applications of cultural anthropology in the United States. The methodology includes a review of the historical co-evolution of jurisprudence and anthropology, legal analysis of issues of discovery and admissibility of anthropological information, and examples of applications elicited from practicing anthropologists.

Anthropology is the bio-cultural science of Homo sapiens, Humankind. The Latinate biological name implicates the biological and the cultural dimensions of human adaptation. Correspondingly, biological or physical anthropology emphasizes the genetic, physiological, and anatomical aspects of human adaptation. Cultural anthropology, also known as ethnology, focuses on learned patterns of adaptation. Archaeologists study past adaptations, both physical and cultural, by means of excavation and cultural reconstruction. Linguistic anthropologists study the biological and cultural aspects of speech, language, and other human communication systems.

Treatises and guides to expert witnesses, if they mention anthropology at all, generally limit their scope to forensic physical anthropology. This article documents, in particular, the expanded forensic applications of cultural anthropology.

A mention of "anthropology" turns the mind to the south seas, the pyramids, or the Stone Age. The imagery evoked is that of exotic adventure and discovery. This author would not change that image, but would call attention to the fundamental substantive objective of cultural anthropology: the exploration of the role of culture in human behavior by describing and comparing the specific cultures of the world's diverse societies. The anthropological tradition of ascertaining the world's unfamiliar cultures and the variation of human adaptation continues.

Now, however, the anthropologist is as likely, indeed more likely, to be found in modem, urban, corporate American settings as among the culturally exotic. Nevertheless, the method and theory ofintensive participant-observation grounded in empirical fieldwork still characterizes today's anthropological exploration. The procedural methods, the substantive data, and the theoretical constructs of contemporary anthropology are being applied in forensic settings not likely to have been envisionedby Holmes, for whom anthropology was in its infancy.

The objective of this article is to reintroduce traditional anthropology to the practicing bar. "Reintroduce" is the appropriate word, first, because anthropology is grounded in law; a number of jurists are among her progenitors. Second, this author would reintroduce anthropology to that generation oflawyers who are unaware of its present utility. Finally, this author would introduce forensic culturalanthropology to the practicing attorney as a salient complement to forensic physical anthropology.

This article begins by highlighting the common ground shared by law and anthropology in a historical perspective. A review of the decisions of federal courts regarding procedural and evidentiary issues raised in the context of anthropological and related social science testimony follows. Commentary submitted by anthropologists who responded to this author's requests for information published in two major newsletters serving the profession will supplement the article. These correspondents are academic and practicing anthropologists with expertise in archaeological and ethnographic methods, cultural content and context analysis, and culturalprocesses. Their applications include pretrial consultation and providing expert testimony. The areas towhich this expertise is applied ranges in diversity from criminal state-of-mind determinations toarchaeological reconstructions of automobile accidents, and from identifying common questions of factfor class action membership to determining potential jury bias. Finally, this article offers some suggestions to the practitioner for locating a cultural anthropologist.

II. The Anthropological Underpinnings of Modern Jurisprudence

What was this "anthropology, the science of man" (3) that prompted the noted jurist to direct lawyers to seek its counsel? Holmes's admonition appears remarkable when one considers that the first academicappointment in anthropology was established only three years earlier by Sir Edward B. Tylor at Oxford University (4). The statement is less remarkable, however, when one recognizes that enlightened scholars had engaged in comparative analysis of the world's legal systems for the previous hundred years. These explorations formed the juristic foundations of anthropology and the ethnological bases of comparative jurisprudence and legal realism.

In the mid-eighteenth century, Montesquieu challenged the existing doctrine of an immutable, absolute, natural law when he "realized that law in a given society was not a reflection of a universally valid set of legal principles but rather an integral part of a particular people's culture." (5) Montesquieu, as early as 1721, conceived a theory of legal relativity (6). Of Montesquieu's writings in 1750, (7) Pospisil remarks, "[Ilt is clear that law is regarded by him as a part of the culure of a particular society." (8) Montesquieu articulated the basic principles of social science and "instituted a new field of study which we now call comparative law.”(9)

In 1861, Sir Henry Sumner Maine, a jurist, published Ancient Law, a literary classic compared in itsimpact on jurisprudence to that of Einstein on physics (10). Maine set the stage for an empirical scientificapproach to jurisprudential anthropology. Based on his studies of Roman, Hebrew, Hindu, and Brehon (Irish) law, (11) Maine articulated a theory of the evolutionary stages of human society. Maine assumedthat society had evolved from a familiar stage, through a tribal state, to the modern territorial state (12). According to Maine, while the rudiments of law may have been found in corporate family law, the content of law emerged in tribal customs (13). Finally, the separation of law from ethics and religionoccurred in modem states, duly administered by a judicial oligarchy (14).

Maine's contribution to anthropological theory was significant not only for his original theories, butalso in his articulation of ideas in circulation among his contemporaries (15). Another lawyer, Lewis Henry Morgan, figured significantly in the anthropology of Holmes's era. In 1877, Morgan postulated that levels of political evolution were correlated with, if not caused by, particular technological accomplishments (16). For Morgan, human history evolved from a nuts and berries "savagery" through a farming "barbarism" to the ultimate urban "civilization."(17) Like Maine, Morgan viewed cultural development as occurring by way of universal evolutionary stages (18).

In 1879, the United States Bureau of American Ethnology was established "to produce results thatwould be of practical value in the administration of Indian affairs."19 In 1883, Sir E.B. Tylor wasappointed at Oxford to train administrators of the British colonial empire in applied anthropology.20In1886, Major John Wesley Powell, Director of the United States Bureau of Ethnology, eloquently statedthe philosophy of unilinear evolution:

The age of savagery is the age of stone, the age of barbarism the age ofclay; the age of civilization the age of iron.

In savagery, law extends only to kindred, in barbarism, to kindred andretainers, in civilization, to all the people of the nation.

In savagery, the beasts are gods; in barbarism, the gods me men; in Civilization, men are as gods, knowing good from evil. (21)

So pervasive was the notion of a social progress theory that it influenced not only anthropology and law but the political careers of nations as well. American Indian assimilation policy, from Thomas Jefferson's agrarian reforms,(22) to the Supreme Court's current tribal sovereignty analyses, are grounded in unilineal evolution, (23) as was the Marxist-Leninist Communist agenda. (24)

So this was the backdrop against which Oliver Wendell Holmes's admonition must be set - The anthropology of 1886 was evolutionary and revolutionary; it provided a unifying perspective on the variety of human cultures and a theory which revolutionized political thought and political action for the coming century.

III. Would Holmes Recommend AnthropologyToday?

The previous section presented the historical context of Holmes's recommendation that lawyers seekout anthropology as their foundational discipline. An undifferentiated juridical science grounded in the variety of human experience had emerged. This inquiry gave rise, on the one hand, to an anthropologically informed jurisprudence and, on the other, to a policy-relevant administrative anthropology.

The anthropology of Holmes's day had just emerged from its pre-disciplinary era and was in what John van Willigen refers to as the "research-consultant" period between 1860 and 1941 (25). During this era, the simplistic conceptualizations of Montesquieu, Maine, Morgan, and Marx, particularly gave way to empirical fieldwork, scientific methodology, and cross-cultural comparative analyses. Consequently, anthropology underwent a methodological revolution and differentiated into subspecialties. In addition to applied anthropology, physical, cultural, linguistic, and archaeological subfields emerged, each emphasizing a different dimension of its subject matter: Homo sapiens.

The anthropological focus on legal custom gave way to a more holistic concept of culture. Thus,"culture" became the integrative concept as anthropologists studied a society's lifeways, including the beliefs, practices, and social organization of technology, economy, kinship, ritual, the life cycle, law, and politics.

Although the anthropological study of law continued, it was not until 1941 that an anthropologist and a lawyer combined their expertise in the examination of a legal system (26). This "widely praised jurisprudential study" (27) was in fact an implementation of Oliver Wendell Holmes's experimental approach to the discovery of law through the study of legal decisions (28). Holmes stated that "[t]he life ofthe law has not been logic: it has been experience." (29) By joining the decisional approach of Holmes withethnographic data on the Cheyenne society, Karl Llewelyn and E. Adamson Hoebel fulfilled Holmes's admonition to lawyers to find their way to "anthropology, the science of man."

The case study approach continued to support a new emphasis on legal anthropology with important studies of a non-Western legal process emerging (30). The case study approach is, of course, fundamental in American legal education, a fact well-known to American lawyers, for whom law school involve dreading and briefing thousands of cases in an attempt to abstract the law. For the practicing attorney, Holmes's definition of law still rings true: "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." (31)

The Llewellyn-Hoebel coalition invigorated law as well as anthropology. Llewellyn was the principal draftsman of the Uniform Commercial Code (UCC). The UCC is essentially an anthropological document, a legal ethnography based on the discovery of the rules of custom and usage (32) – the culture -- of the subcommunity of merchants. One commentator observed, "Just as Llewellyn found the 'Cheyenne Way' by the method of value-free observation, Article II frequently speaks as though courts should discover the law merchant from .….examination of custom and fact situations." (33) The UCC, like The Cheyenne Way, is based on "thefact-pattern of common life. It does not tell judges the law; it tells them how to find the law." (34)

During this era, jurisprudence enlarged its ethnographic data base and anthropology differentiated into physical, cultural, linguistic, and archaeological subfields. Also, in 1941, applied anthropology emerged as a disciplinary specialty (35).

IV. Forensic Applications

Applied anthropology is practice-oriented rather than theory-driven. That is, the problems thisspecialty addresses are usually identified by non-anthropologists seeking solutions, which require anthropological expertise, rather than by anthropologists advancing the goals of the science per se. Applied anthropologists include both academic consultants, who are sought out for a particular problem,and practicing anthropologists employed in business, medicine, natural resource enterprises (such as mining), government, and other diverse settings. Although forensic applications of cultural anthropology are not as common as are those of physical anthropology, a number of domains of expertise may be useful to the lawyer seeking "scientific, technical, or other specialized knowledge" that may be helpful to the trier of fact.

John van Willigen documents anthropological applications involving expertise in an encyclopedic range of subject matter, which should afford the attorney with expertise adequate to most legal situations (37). As the following sections suggest, however, the range of applications at law is not as largeas it might well be.

V. Procedural Issues in Forensic Anthropology

A. The Journalists' Privilege. Valid field ethnography depends in large measure on the level of trust afforded the anthropologist. Information ranging from neighborhood gossip to defamation and behavior from the deviant to the illegal, may come to the field worker's attention. This information often cannot be disclosed without jeopardizing the researcher's position in the community.

A case that articulates the ethnographer's privilege is In re Grand Jury Subpoena Dated January 4,1984 (38). The issue in Grand Jury Subpoena was whether an anthropology graduate student's field notescompiled in a journal were protected from disclosure to a grand jury (39). The district court held that scholars, like journalists, enjoyed a qualified First Amendment privilege balling disclosure ofconfidential sources to a grand jury:

Affording social scientists protected freedom is essential if we are tounderstand how our own and other societies operate. Recognized by cultural anthropologists since at least the turn of the century as a basic tool, fieldwork is used widely.... In order to work effectively researchers must record observations, communications and personalreactions contemporaneously and accurately.” (40)

B. The Client’s Privilege. The attorney-client privilege should protect from discovery any information provided by anattorney's client to an anthropologist assisting the attorney (41). A medical anthropologist, for example, maybe retained to observe and document a personal injury client's daily routine. Such information is, in effect, given to the attorney through the anthropologist and is analogous to that given to an accountant working on behalf of the client (42). Furthermore, if the anthropologist is conducting original fieldwork for the attorney by observing the daily routine of a personal injury plaintiff, for example, that information should be protected from discovery by the attorney-client privilege (43).

C. Attorney's Work Product Rule. Data generated in preparation for litigation may be protected from discovery by the attorney's workproduct rule (44). Both the attorney-client privilege and the work product rule may apply in situationswhere the anthropologist is retained to obtain information from the client and transmit a report on thatinformation to the attorney. Expert testimony, on the other hand, is subject to discovery (45).

D. Admissibility of Anthropological Testimony. Although anthropological expertise does not appear with great frequency in evidence cases, thosefew existing cases are illustrative and instructive. They demonstrate, to some measure, the principlesgoverning the admissibility of testimony. These cases also illustrate some of the methodologicallimitations of anthropology and related social sciences.

The Federal Rules of Evidence guide the admissibility of expert testimony. Under Rule 702, and itsstate counterparts, expert "scientific, technical or other specialized knowledge" is admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." (46) The essential key is whether the testimony is helpful. The court has wide discretion to exclude testimony (47) that is not helpful either because it is with the ken of the ordinary juror, (48) or because it would be confusing to the fact-finder (49).

A federal rule that promotes the use of anthropology expertise in trials is Rule 703. Rule 703 protects ethnographic evidence from hearsay objections (50). The rule states that the facts or data uponwhich the expert relies do not themselves have to be admissible in evidence if they are “of a type reasonably relied upon by experts in the particular field." (51) Anthropologists reasonably rely on observations of behavior, interviews, and other forms of hearsay which themselves are inadmissible. Much of the ethnographer's field journal contents -- notes on interviews, tentative conclusions about the meaning of behavioral acts---will be hearsay.

The field ethnographer utilizes a number of techniques specifically designed to adduce the trustworthiness of such information. Participant-observation puts the anthropologist in the position of the natural members of the group. Hypotheses about acceptable behavior are validated by successive approximations carried out as an observing participant. The reliability of a respondent, the truth of his statements, and the validity of hypotheses are tested by triangulation, wherein converging lines of inquiry focus on the point at issue. However, even though the testimony may be based on hearsay, the data upon which the expert relies does not need to be admissible and is not made admissible simply because her knowledge is based on hearsay (52).

The following discussion gives examples of cultural, anthropological, and related social science testimony, which the federal courts have accorded differing results in dealing with such testimony's admissibility.

1. Testimony Admitted

(a) Area Experts Explain Cultural Context of Behavior.

Anthropologists often become experts on the culture of a particular group or of a particular region. The cultural rules for behavior vary from group to group; the behavior appropriate to one group cannotbe explained by reference to the rules of another. 'Thus, when an American jury applies American rules of propriety, of manners, or interpersonal relations to persons of a variant culture, the misinterpretation may yield injustice.

In the two cases that follow, the jury heard evidence that placed the behavior of rape victims and of a murder defendant into a cultural context. In Dang Vang v. Vang Xiong X. Toyed, (53) several Hmong (Laotian) women brought a civil rights suit against a refugee counselor who allegedly raped them repeatedly under the pretext of finding them employment (54). The trial court, in accord with Rule 702, admitted the testimony of an anthropologist addressing the role of women in Hmong culture as an explanation for their continued association with the accused rapist (55). The court did not require the Frye test (56) becausethe testimony was based upon "his expertise as an anthropologist and his study of the Hmong [culture], rather than on a novel scientific theory.” (57) In broad acknowledgment of the admissibility of cultural testimony, the court noted that "expert testimony on issues of culture properly is admitted when relevant and not unfairly prejudicial." (58)

The holding in Vang recognizes the cultural differences between the plaintiffs and the jury. In this instance, the anthropological testimony assisted the trier of fact in accounting for behavior that would be outside the range of normal behavior expected by the jurors. The jurors' cultural standards for behavior would have dictated that the Hmong women avoid future contact with their assailants -- a direct contradiction to the Hmong's cultural norms.

In Kwan Fai Mak v. Blodgett, (59) an expert on Hong Kong culture testified that "serious assimilation problems experienced by many Chinese. . . and certain values in the ... culture of Hong Kong ... could help explain ... involvement in criminal activities here." (60) The expert proposed that the defendant's demeanor at trial showed the effects of Hong Kong culture rather than "disinterest or coldness" (61) as perceived by an American court.

(b) Ethnographic Interpretation

Specialties within cultural anthropology, including legal anthropology, cultural psychology, and others, provide specialized expertise in subject fields. The next three cases indicate ways in which that expertise has been applied forensically.

In Kuli Haapai Kaho v. Ilchert, (62) a United States citizen of Tongan descent petitioned for immigrant visa preference status for his daughters, who had been adopted according to Tongan custom (63). The Immigration and Naturalization Service (INS) denied the petition (61). The District Court, in de novo review, found customary adoptions to be recognized under Tongan law and remanded the case to INS to determine whether a bona fide customary adoption had occurred (65). The court of appeals ruled that the district court was not required to defer to an agency's discretion involving questions of foreign law (66). Specifically, the question concerned whether the customary Tongan adoption was judicially valid (67). The appellate court did not find that the district court abused its discretion in allowing into evidence the affidavit of a cultural anthropological expert discussing the legitimacy of Tongan custom nor was the district court's consideration of an anthropological treatise found to be an abuse of discretion (69).

The issue in Jordan v. Gardner (70) was whether "pat' searches of female prison inmates amounted to an unconstitutional infliction of punishment under a traditional Eighth Amendment analysis (71). An anthropologist, on a panel of experts including social workers and psychologists, presented testimony as to the psychological impact on abused women who were strip searched by the male prison staff.

In Schaill v. Tippecanoe County School Corp., (73) an anthropologist testified to the psychological impact of random urinalysis drug testing on adolescent female high school athletes (74). This same anthropologist testified that females considered the monitoring of their urination to be a "breach of cultural taboo." (75) The expert further testified that the medical context would mitigate the severity of the breach (76) The case of Schaill is a prime example of anthropology applied hypothetically. Students subjected to the program were not interviewed, yet the testimony articulated a commonly believed cultural norm. An alternative approach might have been to use psychological testimony. While similar results may havebeen obtained otherwise, anthropology posits its research objectives as more clearly oriented toward thenormal than the abnormal, and toward groups' norms rather than individually held values.

2. Testimony Not Admitted

(a) Testimony Must Be Helpful

In McDougall v. Dixon,(77) expert qualifications were not at issue, nor was the content of thetestimony questioned per se. Rather, the question was whether the affidavits of seven anthropological experts were relevant to the constitutionality of certain jury instructions, and thus were improperly excluded (78). The inadmissibility of the experts' opinion was not based upon faulty methodology, but rather on the temporal remoteness of the study (79).

An anthropologist and linguist were members of a team of experts interpreting murder trial juryinstructions (80). The defense sought to introduce affidavits from the team, and other academics, on jury instructions regarding mitigatingcircumstances in connection with first degree murder (81). One expert tested the instructions on university students "to demonstrate how a reasonable juror would have interpreted the instructions." (82)

The appellate court held that the "interpretation of instructions given by seven academics, employed eight years after the trial, are irrelevant." (83) Such interpretations "would not enlighten the court as to how a reasonable juror, who had heard three weeks of testimony . . . would have interpreted [the instructions]." (84)

(b) Insubstantiable Opinions Are Not Admissible

Opinion testimony must be based on adequate data. In the next two cases, a cultural anthropologist and a linguistics expert lacked the requisite data and either could not or were not permitted to, testify as to whether a fact in issue could be supported by the data.

In United States v. Curnew, a Canadian-bom Indian charged with unlawful entry into the United States sought to prove his eligibility for entry under the fifty percent blood quantum rule (86) The expertwitness, a cultural anthropologist, had examined Cumew's "incomplete family tree" and some"insubstantial cultural ... evidence." (87). The district court ruled that the expert could only testify that Cumew possessed “some amount of Indian blood," (88) but could not offer an opinion that the appellant possessed the requisite quantum. The Eighth Circuit found no abuse of discretion and affirmed the convictions (89)

Dissenting, Chief Justice Lay would have permitted the evidence on the "more flexible rule" because it would assist the trier of fact in determining whether Cumew was sufficiently Indian to meet the statutory exemption (90). The dissent would find that the burden of production was satisfied by testimonythat Cumew was considered to be an American Indian by himself and others (91). Justice Lay further noted that the difficulty of proving one's "'blood line' back to the pre-Columbian age" is "prohibitivelyonerous," particularly when considering the problem of how to prove the "racial make-up of adefendant's more distant ancestors." (92)

In United States v. Gutierrez-Mederos (93)the legal issue was whether a Spanish speaking drivercharged with possession of controlled substances gave voluntary consent to a search of his vehicle (94). While the court held that the driver gave voluntary consent to a search of his vehicle, the question of "[v]oluntariness pose[d] a question of fact to be determined from the totality of circumstances." (95) A linguistics expert testified that "due to the stressfulness of the situation and appellant's background, he might not appreciate his ability to refuse [the arresting officer's] request [to permit a search of the vehicle pursuant to a routine traffic stop]." (96) The court discounted the testimony: "This expert, however, never interviewed the appellant. In fact most of her statements about the appellant were responses to hypothetical questions that presumed his limited language skills and cultural heritage." (97) Other evidence revealed that the defendant conversed in English with his companion and his arresting officer."98

Both Curnew and Gutierrez-Mederos illustrate that the rules of scientific methodology and the rules of evidence admissibility are compatible. Sound evidence cannot be a product of overextended expertise.

(c) Confusing Testimony Is Inadmissible

The expert witness must be able to present results in a straightforward and non-confusing manner. World Boxing Council v. Cosell99was a libel action against a prominent sportscaster, in which thetestimony of a professional expert was held inadmissible under Federal Rule of Evidence 702 (100). A certain passage of Cosell's book was alleged to have been written with actual malice (101). The plaintiff sought to admit the testimony of a professional expert witness "'in the field of media analysis and communications research."(102) The court ruled the testimony was inadmissible under Rule 702, stating:

"A layman is perfectly capable of reading Cosell's book and comparing it with the articles he claimsto have relied on, without the 'help' of a linguistics expert. Therefore, Dr. Lashner's testimony wouldwaste the time of both the jury and the court. Because it transforms a common sense issue into atechnical one, and relies on virtually incomprehensible pseudo-scientific jargon, Dr. Lashner's analysismust be excluded as more apt to confuse than to enlighten, more unfairly prejudicial than probative.... No reasonable reader would construe the passage (in Cosell's book] the way Dr. Lashnerdoes." (103)

(d) A Witness's Expertise Should Match the Subject at Issue

It is neither necessary nor sufficient that the expert have earned a graduate degree. What is importantis that the expertise offered be appropriate to the subject matter of the proposed testimony (104). For instance, a clinical psychologist, but not an experimental psychologist, may testify as to one's sanit (105). Likewise, an anthropologist, but not a statistical sociologist, may testify to the ethnography of a community or characterize the culture of a group.

The following two cases utilized statistical sociological methods, however the results were not found admissible. While the methods of this discipline are valid, they may not be appropriate to situation calling for the inductive methods of discovery commonly used by anthropologists. In United States v.Pryba, (106) the court questioned whether certain videos and magazines were obscene in reference to community standards (107) The defense sought to introduce the testimony of a statistically trained sociologist who conducted a community stud (108). The basis of the expert testimony was an"ethnographic study" that "looks at what is going on in the conununity."(109) The court stated that "Dr. Scott's interviews of adult video store clerks, store managers, and customers over an eight-day period is simply not science." (110) The court did not clarify whether it considers all ethnography to be non-scientific or only the "ethnographical study" conducted by this witness. The court's understanding of the nature of scientific would, however, distinguish natural science from social science, with the former characterized as capable of "reliable replication." (111)

What makes ethnography scientific is not the rephcability of its facts but its validity (112). The methodological issue is not whether ethnography is scientific but, rather, whether an "ethnographical study" is scientific. Traditional social anthropology is empirical rather than statistical. Thus, its object of study, the human group, is a naturally occurring unit rather than one defined for statistical or other methodological purposes. The distinction is between "group" and "grouping." This distinction results inanother difference between empirical anthropology and statistical sociology.

The Eleventh Circuit, in Willis v. Kemp, (113) recognizes this distinction. In Willis, a murder defendant claimed he was denied his "sixth amendment right to a venire representing a fair cross-section of the community because a cognizable group-young adults aged eighteen to twenty-nine was systematicallyexcluded from the venire." (120) A professor of sociology and anthropology testified that Gallup polls determined that people within the excluded age group were more opposed to the death penalty than those more senior (115). The trial court set forth the criteria for a fair cross-section claim: "(1) ... the group isdefined and limited by some factor ... ; (2) ... a ... basic similarity in attitude, ideas, or experience runsthrough the group; and (3) ... there is a community of interest among members." (116) The appellate court, however, rejected the petitioner's claims on the basis that nothing inherently cognizable about the agegroup was present; the expert's distinction was merely an arbitrary stratification for polling purposes; andthere was nothing inherently cohesive nor was there "any evidence that persons aged eighteen totwenty-nine shared any common attribute, other than their age." (117)

The foregoing cases point to the fact that the lawyer should select an expert witness with expertisematching the subject matter. Just as an expert plumber may not be an expert in matters of carpentry, an otherwise expert sociologist may notbe appropriate in matters where cultural factors are at issue.

(e) Courts Have Discretion to Disallow Testimony

In United States v. Ruelas-Altamirano, (118) the Ninth Circuit Court of Appeals held that it was not anabuse of discretion to refuse to allow a cultural geographer to testify that Mexicans often do not know thename of their employer and that favors are regularly given to and accepted from Mexican police by strangers (119).

VI. Anthropologists At Work

The following materials were submitted in response to requests for cooperation placed in thenewsletters of the American Anthropological Association and the Society for Applied Anthropology. Inpreparation for this article, anthropologists were asked to reply with information regarding their experience in applying anthropological data, methods, and theories in a legal setting with such ethical constraints on disclosure as might apply (120).

A. Educating the Court. One anthropologist remarked on his experience as an expert that he "had to educate the court ... on Nigeria." (121) In this instance, an expert on Nigeria was called upon to testify for the defense in an immigration case. A Nigerian student seeking political asylum in the United States had escaped by a circuitous route including Israel, the Bahamas, Jamaica, and the United Kingdom. "His lawyer deferred a trial until they found an expert witness -- me."(122) This expert found the experience rewarding: "The attorneys commended me on 'standing up' to the cross-examination.... They credited me with saving the young student... I found the experience interesting and was delighted to find an opportunity to apply anthropological knowledge so usefully." (123) An attorney with a degree in anthropology finds the cultural perspective useful in her practice: "[S]ome understanding of the cultural distinctions between parties ... is critical in attempting to negotiate settlement. . . [and] imperative in trying a case." (124)

B. Cultural Dimensions of Facial Trauma. An expert in the "social, cultural, and psychological aspects of facial disfigurement concludes that there is "more and more need for lawyers' education in the social sciences." (125) A medical sociologist-anthropologist with forty years experience testifies in facial disfigurement cases. She reports that "psychologists and psychiatrists are normally brought in for testimony. Only now are the ones I work with appear to be fascinated and delighted with information they freely admit they never were cognizant of." (126)

C. Archaeological Evidence. An archaeologist reports testifying in a personal injury case. The victim hit a power pole along the roadside. At issue was whether a power pole was too close to the road, i.e. less than two feet. Witnesses placed the pole at various distances from the roadside. The archaeologist was hired by the utility company to find the post hole. The archaeologist also noted the loss of evidence that occurred: "I see the prosecutor and police ripping up yards with mechanized backhoes, picks, shovels,whatever, looking for evidence of ... murder. It is painfully obvious that most... detectives and police investigators are, unqualified to conduct such excavations, and destroy what evidence they don't mask or rip out of context." (128)

D. Anthropologist as Detective. An anthropologist at an eastern university reports on two cases in which he acted as an investigator. (129) In a petition to appoint guardians for the estate and the person of an elderly widow, the key issue was whether the woman's behavior was within the legal definition of mental disability or was simply 'neurotic.'... Counsel for the petitioners retained an anthropologist to undertake a comprehensive investigation of the woman's life history. By establishing rapport with the woman's relatives, friends and acquaintances, the anthropologist was able to gather compelling evidence to support the petitioners’ position. As a consequence, counsel for the widow persuaded her to enter into the guardianship voluntarily, thereby averting trial (130). In another instance, an anthropologist was retained to investigate the behavior of a public servant accused of embezzlement. By gaining the confidence of local citizens, the anthropologist discovered that the suspect had threatened potential witnesses and had concealed assets (131).

E. Anthropologist as Trial Consultant. A full-time applied anthropologist reports that he has been employed to assess whether a given venue will afford a fair trial. "I have to study public opinion regarding the people in the case and the incidents involved. From this study ... I will indicate to [the attorney the probability of a fair trial."(132) This same anthropologist is employed to conduct post-trial surveys of juries "so that the attorneys can understand how the jurors saw the trial." (133)

F. The Cultural Defense. Michael Winkleman is engaged in studies of the "cultural defense" to criminal culpability. The essential argument here is that cultural beliefs may be exculpatory if they negate the intent element of a crime (134). Winkleman has prepared defense memoranda documenting Hispanic culturally determinedcauses of non-voluntary behavior which is cited as voluntarily criminal under penal statutes (138).

VII. Finding a Forensic Cultural Anthropologist

Expert witness guides are not as much help in finding an expert anthropologist as they should be. Thefew that this author has reviewed display neither adequate knowledge of the scope of anthropology norits uses; or contain inaccurate listings of organizations and persons including some since deceased. In these guides, the topic "forensic anthropology" is oriented toward biological or criminalistic issues such as the identification of remains by age, sex, and "race." They do not ordinarily include cultural, linguistic,or archaeological anthropology.

One guide says, "Anthropologist are not commonly used in litigation," and cites only two examples (136). A trial-oriented encyclopedia states, "An anthropologist may be called upon to testify on the identification of remains. His testimony can be of special value when questions concerning the age and type of remains arise." (137) Archaeologists are “valuable in a case involving insurance coverage of antiquities. . . and complex property litigation involving mine shafts."(138) A more productive way to locate an anthropologist is to confer with a member of the anthropology faculty of a local college or university. While this person may not be the ultimate expert in your area ofconcern, he may provide useful advice regarding the Spec expertise required in a case and where to locate the appropriate specialist. The American Anthropological Association annually publishes the AAA Guide which lists anthropological programs and their personnel in academic, research, private,and governmental institutions. Finally, the practitioner should research the area of expertise required by referring to articles published in national and regional anthropology journals (139). Such publications are generally available in academic libraries.

VIII. Conclusion

Anthropologists offer the practitioner a wealth of opportunities toeducate courts on subject matterranging from the cultural nonns of ethnic groups to areas of archeological expertise. While the use ofanthropologists as experts is perhaps not as extensive as it should be, the practitioner should heed thewords of Justice Holmes and recognize the practicality of the "science of man" in the courtroom.

Footnotes and references

B.S. (1961), Seattle Pacific College; M.A. (1970), University of Kentucky; PhD. (1981),University of Kentucky; JD. (1989), University of Idaho. The author is Research Associate,Laboratory of Anthropology, University of Idaho and Reference Librarian at the San Bemadino (Califomia) County Law Library.

1. Oliver W. Holmes, Jr., The Law as a Profession 20 Am. L. REV. 741, 742 (1886).

2. See generally Donald Black, Sociological Justice (1989) ( addressing the application ofsociology to the legal system); Leopold Pospisil, Anthropology of Law: A Comparative Theory (1971) (discussing and comparing the laws of both primitive and civilized societies).

3. Holmes, supra note 1, at 742.

4. George M. Foster Applied Anthropology 184 (1969).

5. Pospisil- supra note 2, at 129.

6. Id. at 131 (Citing Charles de Secondat Montesquieu, Lettres persanes (Paul Vemise ed., GarnièreFrères 1960)).

7. De Secondat Montesquieu, De L'Esprit Des Lois (Robert Deratahé ed., Gamier Frères 1973).

8. Pospisil supra note 2, at 133.

9. Emile Durkheim, Montesquieu and Rousseau: Forerunners of Sociology 51 (Ann ArborPaperbacks 1965) (1960); see also Pospisil, supra note 2, at 129.

10. Pospisil supra note 2, at 143 (discussing Henry S. Maine Ancient Law (n.p. 1963) (1861)).

11. Id. at 144-45.

12. Id. at 144-46.http://wings.buffalo.edu/anthropology/anthroglobe/reprints/anth_forensic.htm (21 of 28) [2/19/2001 2:02:41 PM]

13. Id. at 145-46; see also Henry S. Maine Early Law and Custom(New York, Holt Rinehart &Winston n.d.) (1883).

14. Pospisil supra note 2, at 146.

15. Henry Orenstein The Ethnological Theories of Henry Sumner Maine, 70 Am. Anthropologist264, 264-75 (1968).

16. See Lewis H. Morgan, Ancient Society (n.p. Leslie A. White ed., Balknap Press 1964) (1877).

17. Id. at 274.

18. Id. at 428.

19. John van Willigen, Anthropology in Use 12 (1991) (quoting John Wesley Powel, First AnnualReport of the Bureau of Elhnology (1879-80) (Wash., D.C. Gov't Prtg. Office, 1881)).

20. Id. at 12-13 (citing George M. Foster, Applied Anthropology (1969)); see also C.H. Read,"Anthropology at the Universities", 38 Man 56-59 (1906).

21. John W.Powel, "From Barbarism to Civilizationl" 1 (oldseries) American Anthropologist97,121,123 (1888).

22. James E. Lobsenz, "Dependent Indian Communities: A Search for a Twentieth CenturyDefinilior" 4 24 Ariz L. Rev. 1, 4-5 (1982).

23. See Allen C.Tumer "Evolution, Assimilation, and State Control of Gambling in Indian Country:Is Cabazon v. Califomia an Assimilationist Wolf in Preemtion Clothing?", 24 Idaho L. Rev. 317 (1987).

24. Julian H. Steward, Theory of Culture Change: The Methodology of Multilineal Evolution 15(1963) (citing Leo P. Tolstoy, "Morgan and Soviet Anthropological Thought", 54, AmericanAnthropologist 8-17 (1952)); see also Marvin Harris, The Rise of Anthropological Theory: A History ofTheories of Culture 246-49 (1968) (citing Friedrich Engels, Origin of the Family, Private Property andthe State (n.p. 1884)); Pospisil- supra note 2, at 153-58.

25. van Willigen, supra note 19, at 4.

26. See generally Karl N. Llewellyn and E. Adamson Hoebel, The Cheyenne Way (1941) (describingCheyeme society, including Cheyenne law).

27 Charles F. Wilkinson, American Indians and the Law: Native Societies in a ModernConstitutional Democracy 74 (1987).

28. Pospisil supra note 2, at 31.

29. Oliver W. Holmes, Jr., The Common Law I (1881); see also Oliver W. Holmes, Jr.,"The Path ofLaw", 10 Harv. L. Rev 457 (1897) [hereinafter The Path of Law].

30. See e.g.,Max Gluckman, The Judicial Process among the Barotse of Nothern Rhodesia (1955);Laura Nader & Duane Metzger, "Conflict Resolution in Two Mexican Communities" , 65 AmericanAnthropologist 584 (1963); Laura Nader, "An Analysis of Zapolec Law Cases", 3 Ethnology 404 (1964);Forensic Cultural Anthropology in United States lawhttp://wings.buffalo.edu/anthropology/anthroglobe/reprints/anth_forensic.htm (22 of 28) [2/19/2001 2:02:41 PM] Leopold Pospisil, "Social Change and Primitive Law: Consequences of a Papuan Legal Case", 60American Anthropologist 832 (1958) (cited in Pospisil supra note 2, at 34).

31. The Path of Law, supra note 29, at 461.

32. See Wilfimn A. Schnader, " A Short History of the Preparation and Enactment of the UniformCommercial Code", 22 U.Miami L.Rev; see also William Twining, Karl Llewellyn and the RealistMovement 270-301 (1973)

33. Richard Danzig, "A Comment on Jurisprudence of the Uniform Commercial Code, 27 Stan. L.Rev.. 621, 626 (1975). As an anthropologist studying law, this author found Article 2 of the UniformCommercial Code more palatable after leaming the fact that its principal draftsman was also the author ofThe Cheyenne Way.

34. Id.

35. van Willigen, supra note 19, at 34.

36. Fed R. Evid 702.

37. John van Willigen, Anthropology in Use: a Source Book on Anthropological Practice(1991). These areas include: agricultural development, alcohol and drug abuse, businessand industry, community action, criminal justice, cultural resources management designand architecture, disaster research, economic development, education and schools, energyand environment, fisheries, forestry, geriatric services, governent and asminiration, healthand medicine, housing, human rights and racism, land use and land claims, language andlinguistics, law and regulation, law enforcement, media and broadcasting, military,missions, nutrition, policymakmg, population and demography, recreation, religiousexpression, resettlement, social impact assessment, warfare, water resources development,wildlife management and women's issues.

38. 583 F. Supp. 991 (E.D.N.Y. 1984), rev'd 750 F.2d 223 (2d Cir. 1984). On appeal, theSecond Circuit reversed and remanded the case holding that the instant record did notcontain enough information to warrant consideration of whether the privilege existed..

39. Grand Jury Subpoena 583 F. Supp. at 992.

40. Id. at 993.

41. See Fed Rule Evid.501;see alsoTrammel v.United States, 445 U.S.40,51,106 S.Ct.906, 913, 63L.Ed.2d l86,195 (1980) (discussing common law rational for the existence of the attomey-clientprivilege).

42. Cf. United States v. Kovel 296 F. 2d 918 (2d Cir. 1961) (holding that an attorney-clientprivilege extends to commurucations made by a client to an accountant employed by counsel).

43. See e.g.,Cabral v.Arruda 556 A.2d 47, 50-51 (R.I.1989) (construing a Rhode Island privilegeprovision similar in respect to that of the federal provision).44. Fed. R. Civ. P. 26(b)(3).Forensic Cultural Anthropology in United States law. http://wings.buffalo.edu/anthropology/anthroglobe/reprints/anth_forensic.htm (23 of 28) [2/19/2001 2:02:41 PM]

45. See Fed. R. Civ. P. 26(b)(4)(A)(i).

46. Fed R. Evid. 702; see also Debra T. Lantis, "Annotation, When Will Expert Testimony 'Assistthe Trier of Fact' So As To Be Admissible at Federal Trial Under Rule 702 of Federal Rules of Evidence,75 A.L.R. FED. 461 (1985 & Supp. 1991).

47. See Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S. Ct. 1119, 1122, 8 L. Ed. 2d 313,317 (1962).

48. United States v. Brewer, 783 F.2d 941, 842 (9th Cir.) (holding that untrained jury did not needexpertise of forensic anthropologist who could not Identify defendant as photographed robber), cert.denied, 479 U.S. 831 (1986).

49. United States v. Schmidt 711 F.2d 595, 599 (5th Cir. 1983) (noting that "cognitive scientist"specializing in psycholinguistics "complicated an otherwise sirnple issue before the jury'), cert. denied,464 U.S. 1041 (1984).

50. Fed R. Evid. 703.

51. Id.

52. See Rose HalL Ltd. v. Chase Manhattan Overseas Banking Corp., 576 F. Supp. 107, 158 (D. Del. 1983), affd. 740F.2d 956 (3d Cir. 1994@ and cert. denied, 469 U.S. 1159 (1985).53. 944 F.2d 476 (9th Cir. 1991).

54. Dang Vang, 944 F.2d at 479.55. Id. at 481.56. Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (holding that polygraph test results wereinadmissible because the test had not gained scientific acceptance).

57. Dang Vang, 944 F.2d at 482.

58. Id. at 481 (citing United States v. Doe, 903 F.2d 16 (D.C. Cir. 1990); see also United States v.Cumew, 788 F.2d 1335 (8th Cir.), cert. denied, 479 U.S. 950 (1986); United States v. Kills Crow, 527F.2d 158 (8th Cir. 1975); United States v. Ruelas-Altwnirano, 463 F.2nd 1197 (9th Cir. 1972) (percuriam); People v. Rhines, 131 Cal. App. 3d 498, 182 Cal. Rpti 478 (Ct. App. 1982); State v. Gong,115 @ 86, 764 P.2d 453 (Ct. App. 1988)).

59. 754 F. Supp. 1490 (W.D. Wash. 1991), aff'd, 970 F.2d 614 (9di Cir. 1992).

60. Blodgett, 754 F. Supp. at 1499.

61. Id.

62. 765 P.2d 877, 881 (9th Cir. 1985) (noting favorably the Second Circuit s affirmance of districtcourt's de novo review of issues of legitimate births under Chinese law in Chin Lau v. Kiley, 410 F.Supp. 221, 223-25 (S.D.N.Y. 1976), ard, 563 F.2d 543 (2d Cir. 1977)).

63. Ilchert, 765 F.2d at 879.Forensic Cultural Anthropology in United States law

64. Id.

65. Id. at 879-80.

66. Id. at 892.

67. Id. at 885-86.

68. Ilchert, 765 F.2d at 883-84.

69. Id. at 882-84 (discussing the district court's reliance upon an article by Keith L. Morton, entitledTongan Adoption in Transactions in Kinship -- Adoption and Fosterage in Oceania (I. Brady ed.1976)).

70. 953 F.2d 1137 (9th Cir.), reh'g granted, 968 F.2d 994 (9th Cir. 1992).

71. Jordan, 953 F.2d at 1142-43.

72. Id. at 1142.

73. 679 F. Supp. 833 (N.D. Ind.), aff'd, 864 F.2d 1309 (7th Cir. 1988).

74. Schaill, 679 F. Supp. at 844.

75. Id.

76. Id.

77. 921 F.2d 518 (4th Cir. 1990), cert. denied, Ill S. Ct 2840 (1991).

78. McDougall, 921 F.2d at 532.

79. Id.

80. Id.

81. Id.

82. Id.

83. McDougall, 921 P.2d at 532.

84. Id. at 532-33.

85. 788 F.2d 1335 (8th Cir.), cert. denied, 479 U.S. 950 (1986).

86. Curnew,788F.2d at l337. Thefifty percent blood quantum rule states that "[n]othing in thissubchapter shall ... affect the right of American Indians born in Canada to pass the borders of theUnited States, but such right shall extend only to persons who possess at least 50 per centum of bloodof the American Indian race." Id. (alteration in original) (quoting from the Immigration andNationality Act Pub. L. No. 414, ¶ 289, 66 Sta. 163, 234 (1952) (codfied at 8 U.S.C. 1 1359(1988))).

87. Curnew, 788 F.2d at 1339.

88. fd.

89. Id.

90. Id. at 1340 (Lay, CJ., dissenting).

91. Id.

92. Curnew, 788 F.2d at 1340 (Lay, CJ., dissenting).

93. 965 F.2d 800 (9th Cir. 1992).

94. Gutierrez-Mederos, 965 F.2d at 803.

95. Id. (citing UnitedStates v. Vasquez, 858F.2d 1387,1389 (9th Cir. 1988), cert. denied, 488 U.S.1034 (1989)).

96. Id.

97. Id.

98. Id. at 803.

99. 715 F. Supp. 1259 (S.D.N.Y. 1989).

100. World Boxing Council, 715 F. Supp. at 1260.

101. Id.

102. Id. at 1264.

103. Id. at 1264-65 (citation and footnote omitted).

104. See 33 Fed. Proc. Law. Ed.Witnesses ¶ 80-132 (1985).

105. Id.

106. 678 F. Supp. 1225 (E.D. Va. 1988), aff'd, 900 F.2d 748 (4th Cir.), cert. denied, 11 S. Ct. 305(1990).

107. Pryba, 678 F. Supp. at 1226.

108. Id. at 1232.109. Id. (quoting State v. Anderson, 85 N.C. App. 104,

109, 354 S.E.2d 264, 267 (1987) cert. denied,488 U.S. 975 (1988)).

110. Id. at 1232 n. 12.

111. Id.

112. See generally Jerome Kirk and Marc L. Miller, "Reliability and Validity in QualitativeResearch, in 1 Qualitative Research Methods Series 21-40 (1987).

113. 838 F.2d 1510 (Ilth Cir. 1988), cert. denied, 489 U.S. 1059 (1989).

114. Willis, 838 F.2d at 1513.

115. Id. at 1514 n.4.

116. Id. at 1514.

117. Id. at 1516-17.

118. 463 F.2d 119r7 (9th Cir. 1972).

119. Ruleas-Altamirano, 463 F.2d at 1198-99; see also United States v. Rubio-Villareal, 927 F.2d1495 (9th Cir. 1991) (not allowing "cultural expert" to testify that failure to register truck is commonphenomenon in Mexico), reh'g granted, 967 F.2d 294 (9th Cir. 1992).

120. T'he response to my published request was small but informative. A list of my correspondentsby name and city follows, with the exception of those who wanted to retain their anonymity.121. Letter from Frank Salamone, anthropologist, to Allen C. Turner, Research Associate, RowersLaboratory of Anthropology at the University of Idaho (Mar. 3, 1992) (on file with article author).

122. Id.

123. Id.

124. Letter from Cynthia Noyes, Attorney, to Allen C. Tumer, Research Associate, BowersLaboratory of Anthropology at the University of Idaho (Feb. 4, 1992) (on file with article author).

125. Letter from Frances Macgregor, anthropologist to Allen C. Turner, Research Associate, BowersLaboratory of Anthropology at the University of Idaho (Mar. 3, 1992) (on file with article author).

126. Id.

127. Letter from David Browman, anthropologist, to Allen C. Turner, Research Associate, BowersLaboratory of Anthropology at the University of Idaho (Feb. 4, 1992) (on file with article author).

128. Id.

129. Anonymous letter to Allen C. Tumer, Research Associate, Bowers Laboratory of Anthropology at the University of Idaho (Mar. 1, 1992) (on file with article author).

130. Id.131. Anonymous letter to Allen C. Tumer, Research Associate, Bowers Laboratory of Anthropologyat the University of Idaho (Mar. 1, 1992) (on file with article author).

132. Letter from E.B. Eiselein andmpologist to Allen C. Tumer, Research Associate, BowersLaboratory of Anthropology at the University of Idaho (Feb. 9, 1992) (on file with article author).

133. Id.

134. Michael Winkleman, The Cultural Defense in Criminal Law (Jan. 27,1992) (unpubished manuscript, on file with article author). See generally Sanford H. Kadish, "Excusing Crime", 75 Cal LRev. 257 (1987); Julia P. Sarns, Note, "The Availability of the 'Cultural Defense' as an Excuse for Criminal Behavior", 16 Ga. J. Int'l & Comp. L.. 335 (1986); Malek-Mithra Sheybani "Comment,Cubural Defense: One Person's Cubure is Another's Crine", 9 Loyola L.A. Int'l & Comp. L.J.. 751 (1987);Note, "The Cultural Defense in Criminal Law", 99 Harv. L. Rev. 1293 (1986).

135. Letter from Mchael Winkleman, anthropologist to Allen C. Tumer, Research Associate, Bowers Laboratory of Anthropology at the University of Idaho (Jan. 27, 1992) (on file with article author).

136. Raoull D. Kennedy & James C. Martin, California Expert Witness Guide ¶ 6.38 (2d ed. 1991)(citing Tulsky, "Anthropology 1; Eyewitness I.D." 0, Nat'l L.J. ., July 23, 1984, at 3 (Pennsylvania bank robbery suspect aquitted when physical anthropologist testified that defendant was not person filmed by surveillance camera); Dillon v. San Diego Unified Port Dist., 27 Cal. App. 3d 296, 304, 103 Cal. Rptr.765, 770,(Ct. App. 1972) (cultural anthropologist testified in boundary dispute as to municipal status,in 1871, of National City, Califoniia)).

137. Paul L. Kirk. "Locating Scientific and Technical Experts", 2 Am. Jur. Trials 293,308 ¶ 14(1964).

138. Id. at 309 ¶ 17.

139. The American Anthropologist and American Antiquity are official publications of the AmericanAnthropological Association. Human Organization and Practicing Anthropology are published by theSociety for Applied Anthropology.


 
 
 

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