Dan Harris at  China Law Blog has a great post about why Chinese companies have such a hard time cracking the American market.  Who cares, you ask?  Ah, ye of little vision.  Dan’s points may be directed toward businesses, but they reflect a cultural divide that has the same impact when you represent Chinese nationals in criminal prosecutions.  His observations are highly relevant to criminal defense.

Having had the pleasure of representing many Chinese nationals (note for the hard of hearing: This is about Chinese nationals, not Americans of Chinese descent), dealing with differences in attitude and understanding is crucial to ethical and proper representation. 

Yes, this is America.  When someone from another country decides to step foot on American soil, they subject themselves to our way of doing things, our law, our assumptions.  This is a fine attitude, provided you’re a government agent or prosecutor.  As a criminal defense lawyer, this is fundamentally wrong.  We stand at the cross-roads where two cultures meet.  When those cultures have some fundamental differences, making one inconsistent with the other, it’s our job to reconcile the two.

The Chinese do not have a history that involves love of democracy and appreciation of abstract concepts of fairness.  There are a lot of people over there, struggling to survive and, if at all possible, thrive.  But their vision is limited to the here and now, not some wonderful long-term aspirations for the future. 

Survival to Chinese nationals can be summed up in one word:  Money.  They are extremely sensitive to the accumulation and retention of immediate wealth.  This means that they have difficulty appreciating why anyone would put off a dollar today to gain two dollars next week.  Who knows what will happen in the meantime, and they aren’t taking any chances.  It seems perfectly reasonable to do whatever you have to do to make money now, and have great difficulty understanding why we see this as a problem. 

This presents a problem in retaining counsel in a criminal case.  While they may understand that there are differences in lawyers, some being better than others, they remain very fee sensitive.  Essentially, they want good legal services, but there’s only so far they are willing to go to pay for them.  There reaches a point where the cost exceeds their interest in being well represented, and will not hesitate to walk away and take the hit when the cost gets too high.

Similarly, they tend to view lawyers as plumbers, hired to stop the leak.  They aren’t interested in the nuances of American law, just the result.  They want the problem fixed, and really don’t care about how we do it or what problems they face. Just stop the leak.

This presents numerous problems, and we need to recognize them and address them.  Under our system, there are decisions a defendant must make in the course of a criminal prosecution.  Explaining the nuances of the decisions across the cultural divide is often difficult, and sometimes impossible.  They’ve often told me to just make the decision for them, even though it’s not my decision to make.  It’s not so much that they repose such great trust in their lawyer, but that they expect their lawyer to know better, and that’s what they are paying for.  They have no belief in “justice” American-style, and just want to get out of the middle for the least possible cost.

And then, there are the “hard” differences, such as language and purpose.  We attribute intent to actions in America based upon a shared cultural understanding of values and norms.  We have notions of right and wrong, good and evil.  But these don’t necessarily apply across the cultural divide, where our priorities and relative values are not theirs.  As much as we hate to admit it, we still adhere to the Puritan ethic, and we view it as being a given that everyone thinks the same way.  The rest of the world has never shared our view, and to a large measure views it as silly, immature and just plain wrong. 

Finally, a short war story.  A long time ago, I represented a Chinese defendant in a narcotics conspiracy in the Southern District of New York.  After he was arrested, one of the agents who spoke so- Cantonese gave the defendant his Miranda warnings.  The problem was that the defendant didn’t speak Cantonese.  He was from the Fuchan province, and aside from his native dialect, spoke fairly good Mandarin.  But the agent didn’t speak Mandarin, only Cantonese.

We ultimately had an evidentiary hearing before a district court judge.  I put an acknowledged expert interpreter on the witness stand to explain the differences in the Miranda warning between Cantonese and Mandarin, and why the defendant would not have understood what he was being told.  The federal judge’s initial reaction, in light of testimony that not all the words were different, was whether a defendant needed to understand ALL the words in the Miranda warning, or whether some of them were enough.

After argument as to why all the words mattered, the judge, in frustration, asked the interpreter-witness to say the warnings, first in Cantonese and then in Mandarin.  The witness did as he was told.  After listening intently, the judge smiled, sat back and announced, “They sound the same to me.  Motion denied!”  That’s the sort of justice that Chinese nationals expect from American courts.  It can be a very tough battle.