Culture as Judicial Evidence

Expert Testimony in Latin America

Leila Rodriguez

• Publisher: University of Cincinnati Press
• Year: 2021
• Print ISBN:
  9781947602632
• eBook ISBN:
  9781947602656
• Topic: Politics & International Relations
• Subtopic: Law Theory & Practice
• Index: Politics & International Relations

In Latin America, as early as 1975 testimony given under oath by anthropologists has been applied in the civil law systems in a number of Latin American countries.  Called peritajes antropológicos culturales, this testimony can come in the form of written affidavits and/or oral testimony. These experts build bridges of intercultural dialogue, which overcome language and cultural barriers that have historically limited equal access to justice for indigenous and ethnic people all over the word. 

Culture as Judicial Evidence in Latin America summarizes the current state of this work in six countries: Mexico, Costa Rica, Peru, Chile, Colombia, and Uruguay, and lays out the challenges and dilemmas involved in the creation and use of cultural expert testimony. Organized into three sections, the book advances a framework for the use of cultural evidence, and presents readers with nine case studies based on trials in six individual countries.  These countries have implemented legal reform, constitutional amendments and the adoption of international legislation to create the legal frameworks that enable this new form of legal evidence to be admissible in Latin American courts.  The contributing authors are cultural anthropologists with vast experience researching the impact of cultural expert witness testimony. A forward-looking final section examines the dilemmas and challenges of this work that remain to be solved.

CASE STUDIES

CHAPTER 4

Reflections on Anthropological Expert Testimony in the Context of the Mapuche Indigenous Movement's Emergence

Culture, Racism, and Law in the Neoliberal Era in Chile

Paulo Castro Neira and Yerko Castro Neira

Anthropological expert testimony in the Latin American context constitutes judicial evidence inserted into the monist and hegemonic juridical framework of Latin American states. Simultaneously, it is a part of the wave of multicultural reforms that coincides with critical neoliberal changes that governments of the region have enacted since the 1990s. As critical studies such as those of Charles Hale have noted, neoliberal multiculturalism is a selective recognition promoted by defenders of this economic model, from which comes this idea: “In important respects, indigenous cultural rights activism and neoliberal economics are neatly compatible” (Hale, 2007, p. 37).

In making the above statement, we don’t want to devalue the profession of anthropological expert witnessing, nor do we want to insist on its limitations. We are just trying to construct, in a first line of arguments that will be later expanded, the critical framework in which its practices and practitioners are included.

Anthropologists provide this expert testimony in order to show, through the research practices particular to anthropology and the social sciences, how something that may be considered a crime in the Western normative system may not represent a crime from the point of view of the indigenous normative system;¹ or to prove that a member of an indigenous group did not act with intent to commit an illegal act, according to their perspective or that of their community. More generally, the testimony provides a cultural reading of criminal social facts, based on the tools of anthropology, at the core of which is ethnography.

In the current historical context in Chile, marked by the emergence of social movements and especially among native peoples such as the Mapuche, whenever legal challenges regarding land, the defense of natural resources, and ritual-medicinal spaces are brought up, anthropological expert testimony has become a relevant juridical tool—which under neoliberalism advocates on behalf of cultural diversity and respecting the right of free determination of indigenous peoples.

Here, it is important to point out that when we see expert testimony within the broader frame of multicultural policies and indigenous movements, we detect a broad range of important tensions and conflicts. A first set of contradictions is associated with the very logic with which the predatory economic model operates, defined by Sassen (2014) as a capitalist framework guided by the logic of exclusion, where we have returned to a system of primitive accumulation in which complexity coexists with brutality.

This means that indigenous territories in many parts of the Latin American region are now the new tropical spoils (Comaroff & Comaroff, 2008), where economic growth can coexist perfectly with highly unequal systems of accumulation (Sassen, 2014). Viewed from this perspective, as Botey posits, the colonial paradigm is not completely gone after 200 years, since we can see successive processes of repetition, return, intensification, and expansion (Botey, 2014).

Our thesis here is that in this framework of the cultural logic of late capitalism, multicultural impulses can appear to soften the continent’s tragic history. Insisting on the fact that what’s important is self-determination and the recognition of difference, all the economic struggles end up being mutilated in the name of a discourse of alterity. This criticism is expressed in Blas’s (2007) strong questioning: “Is it acceptable to speak only about diversity, plurality and autonomy of peoples when these are mired in misery, violence and migration?” (Blas, 2007, p. 16).

Anthropological expert testimony finds itself in the middle of these tensions because it has been designed under a state logic in Latin America and is therefore multicultural. Today, however, it has been appropriated by experts who sometimes are guided by an ethic of inclusion; they act to ameliorate damages caused by the predatory and extractive model of the state. At the same time, many indigenous peoples have realized that these testimonies can be crucial tools for making their points of view visible and for seeking justice.

Expert testimony allows the certification of cultural difference and makes it possible for voiceless subjects’ perspective to be heard in court, for which the work of the anthropological translator and interpreter is key—as he or she not only needs to know about the culture of the accused and the community of origin, but also should know the hegemonic normative system. In this regard, the expert may come to be an uncomfortable character, located in the middle of the system, functioning as crucial translator, especially because the educational, juridical, and even ontological systems imposed since the colonial period involved the obliteration of native knowledge. This is what some authors have called cultural epistemicide (for example, Dussel, 1997; Quijano, 2000). In other words, the anthropologist’s work goes, using Benjamin’s (1968) expression, “against the grain” of history in many senses.

On the other hand, presenting at an oral tribunal the findings of an anthropological investigation, and even more, maintaining distance and objectivity, can be risky if the accusatory counterpart questions the adequacy of the anthropologist or his or her impartiality. Most expert witnesses are guided by the highest objectivity possible, even though that doesn’t mean they are neutral when facing conflicts, according to the classical distinction by Sousa Santos between objectivity/neutrality:

This means that expert witnesses seek to be objective during the entire investigation and data organization process, working systematically through each one of the stages of the written reports, even though they can’t always be neutral in the face of the cases on which they report. (Sousa Santos and García Villegas, 2004).²

When working with indigenous peoples, the anthropologist unveils the indigenous normative systems, those that have been eroded by the processes of cultural domination carried out by state societies. Generally, these normative systems continue to operate latently at the interior of some communities, and in most cases it is necessary to reactivate them. These systems are crucial assets for the resolution of internal conflicts and crimes that because of their characteristics could be punished by community sanctions, or under the parameters of the defendant’s own culture.

In this sense, in Chile an abyss separates the state’s normative system from the Mapuche juridical system, as the first employs jail sentences and takes the accused to court, while the indigenous normative system (in this case the Mapuche) does not consider the use of jail, and the community and/or traditional authorities can determine punishment.

For the Mapuche, alternatives to jail are: banishment and expulsion from the territory, the compensation of damages through payment in kind or collaborative work, or public apologies for the fault committed. In some Latin American communities, the use of moderate physical punishment has been instituted, including the whip in Colombia, which the 1991 Constitution recognizes.

It is important to indicate that throughout the continent there is a wide variety and plurality of indigenous juridical systems.³ Many of them have not been immune to the influence and pressure from dominant systems. For this reason it can be difficult, in some cases, to clearly differentiate between these two systems. At the same time, while for the Mapuche there are procedures guided by reparation and equilibrium, we also know that in other contexts (under the concept of indigenous law), we can find highly exclusionary and even violent systems that target minorities within their own communities.⁴

In summary, the anthropological expert witness is located between two fundamental paradoxes. The first is marked by their presence in the broader context of multicultural reforms during the neoliberal era, which presupposes significant limitations. The second is that their work is conducted within the concrete material reality in which indigenous peoples’ normative systems of law are developed. This requires recognizing that there is great variation in terms of cultural forms, in a pendulum that can be traced on the one end by inclusive measures (guided by equity and reparation of damages) to the opposite end that includes highly exclusive and violent models.⁵

Anthropological Expert Testimony in Chile

In Chile, anthropological expert testimony has its origins in the 1950s, during a case known as “murder by witchcraft.” Juana Catrilaf killed her grandmother Antonia Millalen, on the advice of a traditional healer who claimed that the grandmother was a witch. The magistrate requested expert testimony. One of the experts who worked on the case was Alejandro Lipschutz,⁶ who crafted expert testimony that substantiated the actions of the accused within the cultural context of the case. The report was key for absolving Juana Catrilaf (Skewes, 1999, p. 92).

Another anthropological expert testimony was proffered in the context of the 1960 tsunami, when the machi⁷ (shaman) of the coastal region of Puerto Saavedra told the community about the need to carry out a complex ceremony that led to the sacrifice of a 5-year-old boy, who was given as offering to the gen lafken (ruling spirit of the sea). This ceremony took place at Cerro La Mesa with the consent of the boy’s grandfather.

The machi claimed, as reason for the sacrificial ceremony, that the tsunami was a divine punishment due to the transgression (txafentun) embodied in the families’ changed lifestyles. Alejandro Lipschutz participated in this case once more, along with Grete Motsny.⁸ Both provided evidence to support the defense’s thesis that the machi acted with irresistible power or insuperable fear (Article 10, No. 9 of the Code of Criminal Procedure).

However, despite its historical antecedents, anthropological expert testimony would only become broadly relevant during the democratic government that followed the military dictatorship, thanks to the 1993 creation of the Indigenous Law No. 19.253. This law stated that in order to consider customs in trials, expert testimony can be presented, also pointing out that indigenous people should be given the opportunity to express themselves in their native tongues (Indigenous Law 19.253, p. 19). As an important milestone in this historical overview, in 2000 the Reform of Criminal Procedure took place in Chile. This reform changed the nature of trials: an oral tribunal would present the facts from the defense and from the prosecutor, and then a group of judges would issue their decision, through a guilty or not guilty verdict.

The reform also created a national-level Criminal Public Defender’s office and a Mapuche Criminal Defender’s office (DPM), specializing in the defense of indigenous people. DPM offices are also established in regions with large percentages of indigenous people, in the south-central part of the country: Araucanía (2000), Cañete (2001), Bío Bío (2003), Imperial and Collipulli (2015). Advancements in the justice system have also led to the creation of intercultural facilitators (indigenous people), who are key in the mediation process between defendants, their communities, and defense lawyers.

The incorporation of the Mapuche language in trials has meant a paradigm shift, and judges have slowly had to introduce international legislation when issuing their decisions. For example, they have employed the International Labor Organization (ILO)’s Convention 169, ratified in Chile in 2008. We cannot say that this necessarily represents a radical shift, but now trials are public and the defendants have the right to a free defense lawyer.

Here again we detect important paradoxes. As the work of Patricia Richards (2004) has pointed out, changes in the judicial system⁹ sought to make it more open and transparent, while still preserving the anti-terrorism laws designed during the Pinochet dictatorship. Such changes in judicial cases made their processes public, therefore helping to make them more transparent. However, all of this was carried out in a context marked by the criminalization of Mapuche protests, as recorded at the time in multiple reports by the United Nations Special Rapporteur Rodolfo Stavenhagen (2003).¹⁰

At the national level, indigenous people are accused of crimes that are common to the entire population, such as domestic violence, rape, sexual abuse, theft in all of its forms, murder, infanticide, cattle rustling, among others. However, some of these crimes could have a different connotation if they are looked at carefully, and especially if they are analyzed from the perspective of Mapuche subjects and the links with their customs or cultural roots.

A particular example in Chile involved actions that took place in the northern part of the country regarding the use of coca leaves. In 2006, for instance, two Bolivian women of Quechua origin were detained in the city of Calama, II Region of Chile, carrying more than 5 kg of coca leaves that were to be used at a religious festival known as Virgen de Andacollo de Cosca (Barrientos, 2008).

This presented a struggle between positive law (Narcotics Law No. 20.000) that prohibits and punishes carrying and consuming coca leaves, and indigenous law that supports a millenary tradition involving the use of these leaves for ritual. Aymara Professor Elías Ticona Mamani provided the expert testimony in this case.

In another similar case involving a Bolivian citizen, anthropologist Francisca Fernández prepared the expert testimony, which demonstrated the Aymara’s use of coca for rituals. In this case, the accused was a truck driver who entered Chile through Chungará Complex, community of Putre, I Region of Chile, with a shipment of soy leaves, eight kilos of coca leaves, chuño potatoes, corn, and ethyl alcohol containers that were to be used at carnival rituals by Andean communities of Chile and other Southern Cone countries.

The incident took place on June 11, 2014, and the driver was accused of illicit coca trafficking according to the Chilean narcotics law. On this occasion, and given the defense’s arguments and the expert testimony, the Aymara custom regarding the transportation and use of coca for family, medicinal, and ritual purposes was uphe...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• List of Acronyms
• Theory
• Case Studies
• New Directions
• Acknowledgements
• Contributor Biographies
• Index