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.