Special Issue: Cultural Expert Witnessing: Volume 74

Expert witnessing in asylum cases involves depicting the conditions of the applicant’s home country as a context for judging a well-founded fear for life or safety. Most of the elements involved in the work of the expert country witness are dynamic and change over time, creating new challenges and new resources for describing and interpreting country context. Examining several characteristic Honduran asylum cases separated by 20 years reveals not only an increasingly complex and multifaceted set of relevant conditions in both the sending and the host country, but also a significant broadening of the anthropological “tool kit” available to the expert country witness (as the expert witness becomes aware of its relevance to country conditions at a particular time), and an increasingly reflexive and complex relationship of the expert witness to the country in question and to the court. In the interim, emerging problems of contextual complexity, subjectivity, changing and competing images of reality, and the shifting applicability of legal and sociological definitions and categories arise and can be partially addressed with emerging anthropological or social scientific resources, raising anew the nature of the relationship of the expert witness to the court and the possible mutual influence of social science and legal culture upon each other over time. As the number of refugee seekers increases globally, can expert witnesses trained in social sciences help asylum courts to imagine new ways of bridging the gap between legal regimes of governmentality and the subjectivity of refugees?

Several recent statistical analyses provide overwhelming evidence for substantial injustice in immigration court decisions. Writers also explored the data for evidence of bias. Several ended with recommendations for more legal training for judges and more professional appellate review. These recommendations assume that the problem is in the interpretation of the law and conduct of the trial. My own experience has been that there is actually a greater problem in the interpretation of facts, at several levels. Courts provide for translators, but merely verbal translation is not enough. Cultural translation is required. In this chapter I illustrate what cultural translation is with instances from five different asylum cases that I have been involved in as an expert witness. I conclude with recommendations to support better use of this kind of information.

In this chapter we compare and contrast our relationships with clients in our roles as expert witnesses, consultants, and specialists with the relationships we have with our subjects and informants as research anthropologists and as we collect ethnographic data. While there are qualities that differentiate the relationships we have as expert witnesses, consultants, and specialists with our clients from the relationships that we develop as anthropologists working with informants in the field, there are also important similarities. We build upon our experiences as anthropologists and our roles serving as expert witnesses, specialists, and consultants to argue that the similarities and differences must be considered. Specifically, we examine the concept of guilt and innocence for informants and clients, the place of the individual in the group, and the larger cultural framework that defines our clients and informants as individuals worthy of our interest.

This chapter explores the multiple boundaries traversed and accompanying acts of translation entailed in the provision of expertise by anthropologists. The chapter begins with an overview of the asylum process, the criteria constituting persecution, and a description of the bureaucracy and procedures by which asylum is determined. The role of expert witness is then introduced with a focus on the rules of federal evidence that paved the way for greater anthropological involvement in the provision of expertise. The next section reviews some of the extant ethnographic literature to date on the asylum process, highlighting the role of dissonance as a recurrent theme in two different respects: the dissonance that occurs between the asylum applicant and the legal setting, and the dissonance that is created between the asylee and his or her body in the aftermath of trauma. The crafting of the affidavit is then analyzed to illustrate the boundary crossings and acts of translation involved in the appraisal and understanding of asylum, including the traversal of difference in scale, temporality, and the construction of social reality, particularly those espoused by anthropology and law. I suggest that contributing to the protection of human rights through the provision of expert witness is a necessary and mutually beneficial collaboration whereby anthropological evidence, insight, and knowledge provide positive content to legal rights. I conclude that anthropologists are uniquely well qualified in the interlocution of persecution, likening the provision of expertise to fieldwork, as a series of border crossings and acts of translation.

This chapter documents the process of conducting research as an anthropological expert witness to provide evidentiary proof of a well-founded fear of persecution on account of “race” among Chinese Indonesian asylum seekers in the United States. The research employed detailed oral history interviews supplemented by ethnographic information on names, kinship terminologies, and rituals honoring the dead to reconcile the dilemma of verifying cultural identity without essentializing Chinese culture. It also employed the theory of racialization to account for persecution based on “race” according to the 1951 Refugee Convention while recognizing the social science convention of viewing “race” as socially constructed.

When someone’s actions deviate from the social norms of the majority, those actions may be used as the basis for criminal charges against the person, even when the person’s actions are considered innocent within his or her culture. This chapter examines the evidence that can be presented on behalf of a person wishing to invoke a cultural defense, and the author also shares her own experiences in utilizing the defense as an attorney. Cultural defenses can be effective; however, there are arguments both for and against its use. Also explained are processes of pretrial litigation, qualifying an expert witness, trial, sentencing, and appeals.