At a dinner party in Philadelphia, my hostess, one of the majority of black Americans convinced that O.J. Simpson is innocent, says the shovel found in the back of Simpson’s Bronco has shaken this belief, for surely it was there to bury . . . something. I postulate an alternative: You have a shovel in your Bronco because you take it to the beach and sometimes get stuck in the sand or in a Malibu mudslide. “I never thought of that,” my hostess says.
The shovel in the Bronco, though minor evidence, raises a major issue: the impact of culture on justice. I mean culture in the sense of “cultural literacy,” as defined by E.D. Hirsch a decade ago: “the basic information needed to thrive in the modern world.” Hirsch was arguing for teaching traditional culture, to promote commonalty among diverse Americans. His opponents countered that education should emphasize the diversities. The Simpson case suggests that both were right.
In terms of obvious diversities, the Simpson trial is a free-for-all. Victims: one white female, one white male. Defendant: black male. Prosecutors: one white female, one black male. Defenders: two white males, one black male. Judge: Asian male. That is to say nothing of less obvious diversities--religion, class, national or regional origin, language--which often have more impact on behavior and attitudes. All have had an impact on the trial.
Consider the examination of Rosa Lopez, on videotape and in Spanish. Lopez said she’d seen the Bronco--shovel, presumably, in back--at times that would bolster the defense. Defense lawyer Johnnie L. Cochran Jr., on direct examination, perhaps to make Lopez seem more credible, brought out details of her life of labor in the fields and in the houses of the rich. On cross-examination, Prosecutor Christopher Darden asked if Lopez could tell time. To some this seemed insulting--an allusion to the stereotype of Hispanic manana or an implication that Lopez, who read English with difficulty, was unable to read a clock.
But was it not legitimate to wonder if a person whose life had been paced not by whistles and time clocks, but by the rhythms of campo and casa, had, on her day off, while her employers were out of town, made precise note of the time?
Darden’s aim was to impeach not only the facts but the witness, and so he questioned Lopez about different surnames--what he called “aliases.” Here he stepped into a minefield. For kinship norms and consequent naming patterns are among the most variable of cultural variables. Many cultures, including some Latin American ones, use both the paternal and maternal surnames; that Lopez used a singular surname may have been an accommodation to American forms.
Darden, seeming not know this, attacked the point vigorously. Lopez, seeming not to understand why he was asking about something that was (to her) obvious, answered shortly “from my father” or “from my mother” which seemed evasive to those unfamiliar with her culture. The defense failed to respond on redirect. The judge, despite the interjections of frustrated translators, took no notice.
The result: not testimony weakened but testimony that, most likely, will not be heard at all.
In Los Angeles, there are thousands of citizens and residents who are not native-born, heirs to any of a hundred cultures. In the future those numbers will increase. What then are the cultural responsibilities of our legal system, which must protect the rights of such persons, not only as when they are defendants, but also when they are plaintiffs, victims, witnesses or jurors?
Should not prosecutors, whose mandate is to seek not a conviction but truth, know enough of the cultures of those questioned, accused and charged to ensure that cultural difference is not redefined as crime? Should not defenders be aware of cultural mitigations and motivations? In a state as diverse as California should not a law degree require knowledge of a second language? Should not the bar examination test knowledge of the major cultures of the citizens? Should not the courts provide interpretation as well as translation? Should not jurors be selected with some regard for cultural sensitivities--and traditional animosities? Shouldn’t we all be aware that the significance of evidence is altered by culture, and that culture is often not obvious?
To wit: Over beers in rural Western Pennsylvania, my host, one of the majority of white Americans convinced that O.J. Simpson is guilty, rejects the shovel in the Bronco. “What’s a shovel?” he demands. “A tool. What’s a Bronco? A truck. What’s a tool in the back of a truck? Nothin’. You want evidence, show me a shovel in O.J.'s Bentley.”