The Cultural Defense as Courtroom Drama: The Enactment of Identity, Sameness, and Difference in Criminal Trial Discourse

Abstract

This article traces cultural defense as a discursive realization‐in‐context, rather than as a legal‐doctrinal figure, in a Belgian real‐life criminal trial. In examining the defense plea for a Turkish man accused of battery, three discursive techniques are identified for making Cultural Otherness visible: de‐individualization, reporting preparatory meetings with the client, and supplying ethnographic “expert” knowledge that transforms the client into the “object” of discourse. Apart from providing information about the defendant's background, cultural defenses also involve particular modes of behaviorally orienting toward the defendant in the courtroom. Otherness must be enacted in court, and to this end attorneys often actively disaffiliate themselves from their clients, marking them as impenetrable, mute, and unemancipated. In doing so, they draw extensively upon the indexical and iconic modalities of talk, which is convenient because the matrix of sameness and difference on which the cultural defense is founded escapes formal legal definition.

Lost in Translation? Examining the Role of Court Interpreters in Cases Involving Foreign National Defendants in England and Wales

“…By replacing the defendant with the interpreter as the main interlocutor, court participants rendered the former an object of knowledge. This is an example of ''remote'' discourse whereby court actors disaffiliate themselves from ethnic minority defendants through linguistic expressions by rendering them mute, indecipherable, and exotic (D'hondt, 2010;Riggins, 1997). In making visible the defendant's otherness, these discursive practices ''mobilize a sense of 'we' that coaligns [court participants and the audience] against the defendant'' (D'hondt, 2010, p. 92).…”

Recruiting a nonlocal language for performing local identity: Indexical appropriations of Lingala in the Congolese border town Goma

“…Hence, to the extent that the public use of the language equals performing the community indexically associated with it, that usage constitutes an indexical icon of the community in question (cf. the discussion in Silverstein 2003a:222ff; see also D'hondt 2010). This intertwining of indexicality and iconicity is nicely illustrated by the fact that designating someone as a compatriot must always be done in the very language that epitomizes belonging to native soil.…”

Between Norms, Facts, and Stereotypes: The Place of Culture and Ethnicity in Belgian and French Family Justice

“…In the contemporary context of broader diversification of ethno-cultural backgrounds and migration trajectories in European societies, the question of how culture and ethnicity enter the courtrooms still remains empirically under-researched and lacks theoretical systematization (but see Bouillier 2011, D'hondt 2010, D'hondt & Beyens 2004, Petintseva 2016, Simon 2015, Simon &Truffin 2016, Terrio 2009, van Rossum 2010, van Rossum & Jansen Fredriksen 2014, van Rossum & van den Hoven 2016, Wyvekens 2017, 2014. Offering more detailed and nuanced pictures than the narratives of incompatible values increasingly disseminated through public debates is an urgent need socio-legal studies should contribute to meet.…”