Notes From An Expert Witness
Problems in Pocatello, Fiery Funerals and Infighting in Frisco: Anthropology Goes to Court
TASA ID: 921
Anthropologists enter the field for many reasons. There are, for some, the promises of adventure, the mystique of the foreign and the lure of unlimited cultural possibilities. There are, for others, the desire to study and eventually try to help the poor, the dispossessed and the oppressed of the world. There are, for others still, the need to take on an academic discipline that offers intellectually challenging ideas and a way of frequently putting together oppositional views.
Regardless of the reasons we enter the field, we all experience the thrill of learning about other cultures. As we do field work which can be limited, extensive or completely overwhelming, we change. We change in so many ways that we often find ourselves thinking, rethinking and reexamining our own cultural values and perspectives. It is, at the very least, a mind expanding, confusing and joyous learning experience. Sometimes we get to seriously consider and then reinforce the beliefs we have been brought up with. These are lucky anthropologists. Sometimes we experience just the opposite and want to throw out everything we have ever believed and embrace the values and life ways of the culture we are studying.
Most of us "go native" for a while. We take on the outer layer of the peoples we are living among. We get to appreciate their ways, often profoundly love the people and follow their ways when we can. Yet, even as we "go native", we know that in the end we will return to our own land, our own people and our own ways. We will return changed, but we will return.
There are, however, always a few anthropologists who actually become native. Here there are no quotation marks used because these rare anthropologists, those who become native, really do take on their new society and are often never heard from again. They are few in number and it would be tantalizing to know more about them and "their" people but they rarely write about their experiences since they claim that writing up their materials might damage the very experiences they treasure. When I wrote my book “BIKE LUST, an ethnography of California Harley-Davidson motorcycle communities”, I wrote in the preface that I was writing furiously fast because I was very close to becoming native. I even added, "Sometimes I get so close that I have difficulty telling where my skin stops and the cultural skin starts. When this happens, I write the work up fast because I know that soon I won't be able to write it up at all. Once identification is complete, analysis becomes impossible and even reportage feels like betrayal. Since I am on the verge with bikers, I am writing in furious haste." (BIKE LUST: Harleys, Women and American Society, p. 5).
I did not, of course, become native. And while I lived among bikers for many years, and still do, I only "went native." I am still an anthropologist. I still study cultures, appreciate them and am pleased to write about them. This is especially true when the writing helps the culture I am studying.
While I have studied many kinds of people, both in and out of the United States, I have most often taken the academic route of teaching, writing and publishing. And while I would only study people I both liked and respected, I do not usually become overwhelmingly emotionally involved with them. But sometimes, the real world comes barging right into the living room and forces us to be actively involved. Then we have the ability to take our profession by the neck and ring it into the right kind of practical shape.
This has happened a number of times in my career. Because anthropology offers us an amazingly useful cross-cultural perspective along with a most generous appreciation for other cultures, it is one of the few social sciences uniquely suited to represent these other cultures. Through no choice or previous training of my own, I became a court testifying, legal anthropologist. It was my general training within the field of anthropology, specifically the four field approach field, that enabled me to translate my general anthropological knowledge into successful court appearances. While each of my cases was unique, I was able to use anthropological training to prepare them.
Practicing anthropology, applied anthropology, practical anthropology, advocacy anthropology and professional anthropology are all contemporary fields in which current anthropologists ply our cross-cultural trade. We work to further understanding between cultures and help sub-cultures survive and often triumph within the dominant culture.
The following three cases are examples of how an anthropologist can represent people and culture in court. From the welfare lines of Pocatello to a wrongful funeral in Sacramento to a child custody case in San Francisco, I created anthropological briefs for court. I won all of my cases besides one.
Problems in Pocatello: Example One
One year while teaching at Idaho State University, I got lucky. With no previous training and only a little available resource materials I became an expert witness, took on six cases and won them all.
Few of us educated in the late 60's had any specific training in legal anthropology. There were a number of anthropological books available, but for the most part it was not a particularly popular, nor populated field. It would never have occurred to me to try my hand at it had not a Legal Aid Society lawyer from Twin Falls, Idaho knocked on my door and requested help.
Six elder Bannock-Shoshoni women had been accused by Pocatello Social Services of withholding financial information while receiving supplemental security income. The women were charged with fraud and ordered to repay the SSI payments. With the help of the Idaho Legal Aid Society, the women contested the agency ruling on repayment. The Social Service Agency claimed the women knew the rules and chose to ignore them. When the disagreement ended up in court, I was asked to help. As the only anthropologist at Idaho State University, I was the logical person to contact.
That was twenty five years ago. As a first time expert witness, I represented six elder Bannock-Shoshoni women in court. As their expert witness I convinced the presiding judge that the women had not lied to the Social Service Agencies in Pocatello, had not committed fraud and had not taken rent money on bad faith.
The issue before the court was very clear. Had the Indian women understood what was expected of them? Finding a way to answer this question had become my main task. While not a linguist, I am an anthropologist trained in all four fields, so I decided to use language as the criterion for cultural understanding. Since all the verbal exchanges between the Bannock-Shoshoni women and the SSI staff were in English, I chose the women's comprehension of English as the index for general cultural understanding. If the Indian women had sufficiently understood spoken English, the SSI people would have had justification in their claims. If, on the other hand, the women's understanding of English was minimal, a good case for misunderstanding SSI rules could be made.
I assessed the women's English speaking levels by creating a three level language test. Level one consisted of everyday common speech. Could the women understand simple sentences? For example, I asked questions such as: “Are you hungry? Are you cold? How are you feeling?” All the women understood level one English. Level two consisted of linguistic joking behavior. Could the women understand non-literal sentences? Could they share in joke making about local Pocatello officials? At this level, only one woman was able to follow the conversation. The one Indian woman who understood the linguistic ambiguities of joking statements made outrageous comments about the nature of the Pocatello political systems. She had a wonderful time explaining, in great detail, the faults of all the Pocatello officials. She alone was tested on level three. Level three consisted of understanding the rules and regulations governing Pocatello agency policy and the ability to articulate these rules. The woman who understood level two English well enough to joke about Pocatello officials was unable to understand and articulate Pocatello policy regulations. While she knew how the reservation systems operated, she could not translate these understandings to the Pocatello systems.
My findings were as follows: All six Bannock-Shoshoni women understood English at level one: everyday speech. Only one of the women understood level two: joking language and no one reached level three: an understanding of the Pocatello agency rules. Yet these rules and regulations were the very ones that affected the women's lives. At the end of three months, I was able to conclude that while they were all talking English, the Indian women and the agency people were using the language in very different ways. The Indian women understood a minimum of spoken English. The agency people understood no Bannock or Shoshoni. The agency personnel had also assumed that the women's English abilities had been considerably higher.
Since the Indian women did not understand what was expected of them, this was a case of linguistic and cultural misunderstanding. We went to court and won all six cases. The women were cleared of even a hint of misconduct. More than that, we managed to affect some permanent change. From then on, both Bannock and Shoshoni languages had to be used in conjunction with English at all agency-related meetings. To prevent future misunderstandings, interpreters now had to be present at all times. For the first time in Idaho, variant cultural language patterns were accepted in court as determinants of behavior; the Indian women had their day in court and won. They also gained some important control over their economic resources.
Fiery Funerals: Example Two
Several years ago I took a case that did not go to trial. The case never went to trial because my anthropological brief was used to negotiate a pre-trial settlement. Acceptance of the brief saved one side millions of dollars and won, for the other side, a really good sized financial settlement. It was a win-win situation.
As an expert witness, I was hired to research, create anthropological analysis, and write a report explaining both my analysis and evaluations and it worked. My report, submitted in evidence at several informal hearings, was the guiding document that led to a settlement which satisfied all the parties in the situation.
Several family members of a fairly typical Plains Indian group living in the North Western United States faced an unprecedently difficult situation. A deceased family member living far away from home (for over fifty years) died and was, by mistake, wrongfully cremated. The family was furious. The funeral service personnel were remorseful. They had followed instructions about the deceased cremation and the instructions were wrong. They had done what they thought they were expected to do but they were heading for big trouble.
The family claimed that according to their religion, this type of care for the dead, i.e., cremation, was an abomination. They claimed that the deceased would never be able to find peace with such an ending. The family feared that the dead man would never be able to find his own home land again and so he would never rest in peace. The funeral service personnel were apologetic and contrite but the deed had been done. They could not take it back. If the family won, the funeral establishment would financially fail. Clearly they were at fault, they had done the deed, but what they had done was to follow the incorrect instructions sent to them by hospital records. And even though the family was furious, did they have the right to demand so much money in compensation? Answering that question was one part of my task. To make matters even worse, the ashes could not be totally verified as belonging to the Plains Indian man; there was the possibility that they had been mixed with others. Given this situation, the man's family claimed that no proper Plains Indian funeral service could ever be performed. They claimed that the important rites, rituals and end-of-life ceremonies would never be arranged.
On the face of this funeral mistake, it appeared to be an unsolvable problem. Then, some interesting puzzle pieces began to fit into place.
To find out if cremation was ever used as an acceptable end-of-life ceremony, I researched tribal history. Important information was collected concerning both traditional and modern views concerning the care of the dead. Library research, rather than participant observation and linguistic analysis, was the main mode of research. Finding out that under certain unusual circumstances, cremation was neither an unheard of practice, nor a forbidden act, became significant information. Discovering that there are many ways of conducting funeral ceremonies and that these can be done even in the absence of any physical remains became another important piece of significant information. Finally, learning that under traditional circumstances, family members would not normally go 50 years without seeing important relatives, served as significant information.
Because so much time had elapsed between family visits, the first question to be asked concerned the sincerity of the family's grieving. The second question concerned the family’s lack of knowledge as to where the deceased family member had been living. In short, how much of the accidental cremation genuinely harmed the family's sense of tribal tradition and how much of it was punitive? Equally important was the issue of compensation. How much of the litigation was seen as a way of getting some great amount of money? The family was indeed injured, but was their case also in part a way of deflecting pain and guilt for a lifetime of family avoidance and neglect?
To satisfactorily resolve this situation, the family had to first acknowledge their lack of familial interest and filial concern for the deceased. Fifty years is a long time to go between visits and they had not been in touch with, nor tried to contact the deceased for half a century. To satisfactorily resolve this situation, the family had to acknowledge a second serious situation; their deliberate disregard for tribal history and traditions. Neither of these situations were easy for the family to acknowledge, but in the face of common interest, they managed to do so.
The remaining family had to experience and accept a number of attitudinal changes. It took them a long time, but they did it. The first attitudinal change was to accept the fact that there were alternative ways of ceremonial burial and to acknowledge that ash, even mixed and impure ash remains, could be used in ceremonial ways. The family had to accept that they could still orchestrate memorial services and participate in traditional Plains Indian rituals in spite of the fact that the bodily remains were now in the form of ash. With attitudinal change, they could recognize that cremation was not totally foreign to their traditions. Historically, tribal warriors, those who died far from home in battle, were often cremated. The family could then remember that they were and still are a people who have a wide variety of acceptable customs. Finally, they had to acknowledge that they still hold within themselves the ability to create new customs, new patterns and use cultural adaptability to perform a fitting final ceremony for their deceased relative.
The differing parties read the report and the anthropological brief, considered the analysis, and decided to settle out of court. They used the anthropological brief as a guideline for settling their differences and deciding on a fair settlement for all involved. The family received a sizable settlement and the funeral establishment was able to stay in business.
This last case, while clearly different from the first one, was anthropological in the manner in which it was handled. While these two cases clearly represent vastly different legal situations, in each case anthropological expertise was useful in finding solutions to their legal problems.
Infighting in Frisco: Example Three
Ten years ago, my client was not so fortunate. I went one-on-one with a court-appointed psychologist and lost. A father lost custody of his child and I learned that being theoretically "right" may be totally irrelevant when you go to court. In court, winning makes you right, and losing just makes you rethink your case. It can also break your heart.
Both father and mother were battling for custody of a toddler. The father wanted shared custody; the mother wanted complete custody. The mother, just divorced from the child's father, and again pregnant, was planning both her second marriage and her exile from America. Her new family would be living abroad. The father was fighting not only for joint custody, but for his ability to continue being part of his child's life.
The case hinged on child care and parental effectiveness. The father, through a previous court order, had temporary custody. Now he was asking for shared custody. In keeping with her new life, the mother wanted total custody. This would enable her to move abroad. The court psychologist, through home visitations, judged her to be the better parent. The psychologist based his analysis on his home visits. As an anthropologist, I also based mine on home visits, but not just a few hours of visits, genuine home visitations. I went to observe and stayed many hours for many days. I judged the father to be an excellent parent. The father lived close to his parents and siblings. He hired a full time nanny who daily brought the child to her cousin's home for play. The grandparents played an important custodial role. In short, it was an extended family, fully operational and amazingly functional. The child was thriving.
The mother's home was, at that moment, child-free since she did not have immediate custody. She was offering, however, a stay-at-home nuclear-appearing family arrangement complete with mother, new husband and about to be born half-sibling. Her uncluttered child-free home was described, in the psychologist's report, as elegant and spacious. The father's home was described as being cluttered, with old and scratched furniture. The fact that the furniture was old, comfortable and extremely child-friendly was presented as careless housekeeping and sloppy home management rather than child comfortable and user friendly. The mother's child-free home was presented as a model of good taste. In short, in the psychologist's view, the mother, with an upper middle class home and Anglo-heritage was seen as providing a better environment than the one provided by the father with his working class Italian ancestry. He was seen, in the psychologists report, as the less effective parent.
Psychologists, like other social scientists, are neither neutral nor value-free. They, like the rest of the social science professional community, carry their socialization within. Since they rarely challenge the assumptions of class or family structure within courtroom settings, they do their custody evaluations with a set of cultural stereotypes firmly in place. Major among these stereotypes, and clearly within the court report, is the belief that the nuclear family is superior to other kinds of arrangements and that the mother-child bond is always the primary one and the best bond within the familial group.
As an anthropologist I also view the maternal bond as a primary one, but not the only primary one. I too was permitted to do home evaluations and was struck by the wholesomeness and happiness within this multi-generational extended family and presented this view in court. The family not only shared the ritual events such as birthdays, anniversaries and national holidays together, but the equally important small everyday events as well. For example, all the cousins had milk and desert daily at a big wooden, scratched and worn kitchen table. In contrast, the mother, pregnant with her next husband-to-be's child, could, at best, offer her daughter space in a carefully manicured house as part of a blended family where she might eventually become the family stepchild. Taken to another country, it would be probable that she would never see her father or extended kin again. Travel abroad would represent extreme financial difficulty for a working class family.
Anthropologists go into situations with a broad focus. Participant observation requires that we look at the total environment and the specific circumstances each and every time. By approaching people with such an inclusive perspective, it is often possible to get answers to questions that we had, at first, not thought to ask. Thus, I observed the total picture of the child's living situation and discovered a smooth, well-functioning extended family that had been thriving for generations.
My anthropological brief, written as a court document, summarized my findings examining how and why my analysis differed from that of the psychologist. The brief also contained questions to be asked and answered in court, thus allowing me to reveal my own analysis of the situation. I was able to provide the court with new materials on the diversity of American patterns of family life. I was able to confirm that the nuclear family represents only one type of American family and frequently not the most common one. Unfortunately the judge, while allowing my testimony, did not allow my brief to be entered into the court records. He permitted my research bibliography and vita to be submitted as evidence of competency, but refused the anthropological brief under the grounds that it would be in violation of an initial court agreement which stipulated that only one social science professional, (i.e., the court appointed psychologist), would be permitted to submit a written evaluation. My inability to have my cultural analysis introduced as a written brief greatly weakened the case. The judge, who took all the papers home before considering the verdict for the following day, did not have my document to review. The judge never read my analysis and therefore had to rely on just what he remembered of my testimony during the court proceedings. In short, as an expert witness, I had become ineffectual. I had the ability to speak, but lost, for the court, access to my cultural analysis. I won a serious anthropological battle but lost the case. I won the right to speak. It was a hard win but for this case, a useless victory. The judge cross examined me and my credentials for over an hour before he even permitted my testimony. But in the end, he considered the psychologist the "real" expert on family life.
When the judge handed the decision of child custody to the mother, both the father and I were stunned. I felt that the decision reflected a gross misunderstanding of family life and at first I could not accept the verdict. I immediately called the father and offered my services pro bono should he decide to take the case into appeals court. Unlike the lawyers involved, I had not developed the hardened skin that allows legal professionals to disengage from their clients' verdicts. Even though the judge permitted my testimony, anthropology still has a long way to go before the courts view our field with the same kind of respect afforded to psychology. Yet, in spite of the defeat, anthropology did establish a foothold in a professional court room setting. This foothold had previously belonged in California, mainly to psychologists. Anthropological analysis was finally seen as clearly appropriate to use in child custody issues. The community of lawyers, once the judge ruled that I could speak, apparently looked favorably upon the entrance of another professional into their domain. Unfortunately, being unable to have my anthropological brief accepted as case appropriate analysis, lost, for my client, the critical writings that might have won a more favorable decision.
Conclusions
When an anthropologist is deciding to accept a case, ethical and moral judgments are critical considerations. We are not lawyers. We do not have to take all comers. We can be picky and choosy about whom we wish to defend. We can take our time. I summarily reject close to fifteen cases for every one that I accept. I must be absolutely sure that I believe in the case and that I am on the side I consider to be "right" before I am willing to participate as an expert witness. Having an understanding of many cultures and an appreciation for a variety of life ways gives the anthropologist a huge advantage within a court setting. Our cross-cultural perspective makes us "naturals" when it comes to understand cultural problems and conflicts. But it is very important to be as sure as possible of the "rightness" of the case before it is accepted. For once a case is accepted, there is no room for ambiguity nor ambivalence. Once I agree to be an expert witness and decide to follow the case through to the courtroom, it becomes an all or nothing situation. My cross-cultural understandings are extremely helpful in deciding which case I will accept and which position I consider the "right" one. But once deciding to take a case, theoretical considerations are no longer at issue. In this arena, the issues are human lives. The rules are simple; once you accept the case, you absolutely play to win. All pretense at neutrality is gone. Advocacy is primary and the harder-hitting the advocate, the better the chance for victory. Mr. or Ms. nice guy vanishes. Anthropology, played in the real world, loses its innocence. In court you learn what it takes to hit hard and hit again. You learn to be as lethally effective as possible. You are not there to theorize about the nature of humanity or the interesting varieties of culture. You are there to win. Anthropologists, as expert witnesses, break free from the constraints of the ivory tower. In this time-space and in this arena, anthropology becomes profoundly useful to the outside world.
Notes: PRACTICING ANTHROPOLOGY, Problems in Pocatello: A Study in Linguistic Misunderstanding. Vol 6, No 3&4 1984
PRACTICING ANTHROPOLOGY, Infighting in San Francisco: Anthropology in Family Court. Vol 19, No 4 1999
BIKE LUST: Harleys,Women and American Society, Joans, University of Wisconsin Press, 2001
References: AMERICAN CULTURAL PLURALISM AND LAW, Jill Norgren and Serena Nanda, Praeger, Second Edition, 1996
And now for ----A SIDE BAR
And now a helpful hint about dealing with the courtroom situation. For those of us used to living within the confines of academia, the rules for survival in courtroom situations change. Before going to trial I visited several courtrooms to see just what was considered appropriate attire for professional women. Working in the academy, it is easy to loose touch with what corporate or legal America wears. My first comment to the woman lawyer who hired me on my last case was "take me to your wardrobe!" Turning myself into a respectable, fully professional-looking expert witness takes many weeks of work and patience. It also took all the money I received from the retainer in the child custody case. In contrast to academic apparel, clothes for professional women are frightfully expensive. But the make-over is considerably more extensive than mere adornment. It involves a completely different presentation of self. In order to be taken seriously by the court, the lawyers and the judge, I had to look the professional part and that required learning to re-walk in high heels. It also required having freshly shaved legs, relearning to wear a brassiere and talking without using my hands. For three weeks I practiced talking while sitting on my hands. The final transformation came when I cut my long, wild, unruly hair. This had always been a personal trademark. (Fortunately, hair grows back).
As I walked into court, I looked exactly like every other professional women in the courtroom . I was sleek and well groomed, the very model of competence and respectability. I can hold this pose for just about two hours. Fortunately, that's just about the right amount of time. -----------
This expert is an anthropologist specializing in ethnographic field work in American societies. From bikers to cyberspace: law and land. A live in cultural anthropologist. Expert witness in gender and custody often with a variety of competing cultural values. This expert can be reached via email, bjoans@earthlink.net or if you would like to chat with the expert, give TASA a call.
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