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8 Geo. J. Legal Ethics 1 (1994-1995)
The Criminal Defense Lawyer's Reliance on Bias and Prejudice

handle is hein.journals/geojlege8 and id is 11 raw text is: ARTICLES The Criminal Defense Lawyer's Reliance On Bias and Prejudice EVA S. NILSEN* The dominant culture has established certain criteria for theories, for legal arguments, for scientific proofs - for authoritative discourse. These established criteria are the governing rules. If we want to be heard - indeed, if we want to make a difference in existing arenas of power - we must acknowledge and adapt to them, even though they confine what we have to say or implicate us in the patterns we claim to resist.1 INTRODUCTION Criminal defense lawyers are frequently required to utilize legal strate- gies that are morally repugnant because they perpetuate racial, gender, or cultural stereotypes. They know that legal and factual argument often persuades to the degree it piggybacks on the existing prejudices of a listener. A lawyer may, for example, explain or mitigate a client's conduct by attributing it to cultural factors or to post traumatic stress2 or pre-menstrual syndrome.3 It may be necessary to discredit witnesses by accentuating * Clinical Associate Professor, Boston University School of Law. B.A. 1974 Yale; J.D. 1977, University of Virginia; LL.M. 1980 Georgetown University Law Center. Many thanks to Eric Blumenson, Nancy Bennett, Robert Burdick, Fran Burns, Douglas Colbert, Mary Coombs, James Doyle, Stanley Fisher, Kenneth Gallant, William Genego, Phyllis Goldfarb, Scott Harshbarger, Wendy Kaplan, Richard Klein, Tracey Maclin, David Martin, John Mitchell, Charles Ogletree, Jr., Arnold Rosenfeld, David Rossman, Abbe Smith, Avi Soifer, Jennifer Wriggins, and for research assistance, Lawrence Weinberg and Kellie Adams. Additionally, I wish to thank the conference organizers of the Lawyers and Lawyering Conference at Lake Windermere and the Annual Conference of the American Association of Law Schools (A.A.L.S.), Clinical Section for giving me opportunities to present this paper. Finally, I wish to thank the students and clients who provided the impetus for this article. I have changed certain aspects of the cases to protect the identification of those involved. 1. Martha Minow, Feminist Reason, in FEMINIST LEGAL THEORY, READINGS IN LAW AND GENDER 360 (Kathleen T. Bartlett & Rosanne Kennedy eds., 1991). 2. See generally Michael J. Davidson, Post-Traumatic Stress Disorder: A Controversial Defense for Veterans of a Controversial War, 29 WM. & MARY L. REV. 415 (1988). 3. See James W. Lewis, Premenstrual Syndrome as a Criminal Defense, 19 ARCHIVES SEXUAL BEHAV. 425 (1990) (discussing the history of and psychological theories behind the use of premenstrual syndrome as an affirmative defense to a criminal charge).

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