35.1175, Review: Forensic Linguistics in Australia: Eades, Fraser & Heydon (2023)

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LINGUIST List: Vol-35-1175. Tue Apr 09 2024. ISSN: 1069 - 4875.

Subject: 35.1175, Review: Forensic Linguistics in Australia: Eades, Fraser & Heydon (2023)

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Date: 08-Apr-2024
From: Marijana Javornik Čubrić [mjavorni at pravo.hr]
Subject: Forensic Linguistics: Eades, Fraser & Heydon (2023)


Book announced at https://linguistlist.org/issues/34.3280

AUTHOR: Diana Eades
AUTHOR: Helen Fraser
AUTHOR: Georgina Heydon
TITLE: Forensic Linguistics in Australia
SUBTITLE: Origins, Progress and Prospects
SERIES TITLE: Elements in Forensic Linguistics
PUBLISHER: Cambridge University Press
YEAR: 2023

REVIEWER: Marijana Javornik Čubrić

SUMMARY

The Elements in Forensic Linguistics series from Cambridge University
Press provides high-quality accessible writing across four main topic
areas: investigative and forensic text analysis, the study of spoken
linguistic practices in legal contexts, the linguistic analysis of
written legal texts and explorations of the origins, the development
and scope of forensic linguistics in various countries. Forensic
Linguistics in Australia: Origins, Progress and Prospects is the
second Element in the area of forensic linguistics.

All the authors contributed to the development of forensic linguistics
in Australia. Diana Eades from the University of New England
specializes in critical sociolinguistics, language in the legal
process, and intercultural communication, particularly involving
Australian Aboriginal people who speak varieties of English. She
documented the linguistic and cultural differences between their
societies and English-speaking societies. Helen Fraser from the
University of Melbourne is an expert in forensic translation and
transcription, and her phonetic and phonological work was focused on
issues of contested transcription of covert audio for use of evidence.
Georgina Heydon from the RMIT University is a Professor in Criminology
and Justice Studies and a forensic linguist whose work on the police
interview led to attempts to reform interviewing practices across
Australia.

The volume aims to present an account of the origins, development and
current state of forensic linguistics in Australia since the first
expert linguistic evidence in 1959, through early work in the 1970s
and 1980s, the defining of the discipline in the 1990s to the present
day. It consists of an Introduction and five chapters. It also
includes a list of abbreviations, an appendix about the engagement of
the judiciary and legal profession with forensic linguistics and
recognition in law of specific Australian forensic linguistics work in
legal proceedings, commissioned reports and similar.

In the Introduction, the authors explain that they do not intend to
cover the field of forensic linguistics outside Australia and that
they intended to bring together the work of Australian linguists on
language and law. The introductory part offers a definition of
forensic linguistics, and then briefly describes the history of
forensic linguistics in Australia, outlining its main characteristics.
In the volume, forensic linguistics is defined as a branch of applied
linguistics that uses expertise in linguistics for applications
related to legal context. The authors note that Jan Svartvik was the
first to use the term ‘forensic linguistics’ in The Evans Statements.
A Case for Forensic Linguistics that was published in 1968. However,
in Australia, linguistic evidence was first presented in a legal
matter in 1959, almost a decade before Svartvik coined the term
‘forensic linguistics’.  Although it is a relatively young discipline,
it has grown into a prominent and expanding interdisciplinary field.
Forensic linguistics develops methods for analyzing and evaluating
language to be used as evidence in courtroom hearings, evidence such
as written documents or recorded conversations that provide
information relevant to judicial decisions. Then the authors proceed
to describe the history of the discipline in Australia from its very
beginnings in the 1950s, the early days in the 1970s and 1980s, and
the period of defining the discipline in the 1990s up to the 21st
century. By the late 1990s forensic linguistics and forensic phonetics
were well established in Australia, with expanding research across
various branches and increased interaction with international
colleagues.

In the next section titled Misconceptions and Problematic Ideologies,
the authors focus on the issue of ignorance and misconceptions, both
misconceptions held by many linguists about how the law works and also
misconceptions in the law about language, speech, and problematic
language ideologies. Some important research focusing on these
misconceptions and ideologies is mentioned. A particularly important
issue in Australia is the assumption that monolingualism is, and
should be, a norm in society.  As Australia is a country in which more
than 300 languages are spoken, and 21 per cent of Australians speak a
language other than English at home, this issue is of tremendous
importance, and many Australian linguists have worked to counter that
assumption. Among the most prominent authors who are internationally
recognized for their work in this field are Sandra Hale, Ludmila
Stern, Michale Walsh and Michael Cooke.

The third section examines forensic linguistics, which involves
analysis of the linguistic context of the language data, using
expertise in phonetics, syntax, semantics and other analytical
branches of linguistic science. It discusses the legal history of
forensic transcriptions and the contribution of Helen Fraser and
others in minimising the risk to justice posed by the use of police
transcripts. An experiment led by Fraser in 2011 attracted
considerable interest from linguists:  in this experiment audio from a
real murder trial was used to demonstrate how an inaccurate transcript
can mislead listeners into 'hearing' incriminating words that have
actually not been spoken. A number of linguists who contributed to the
field of forensic phonetics are mentioned, such as Alex Jones who was
the first to provide speaker identification evidence in Australia,
Heather Bowe, who established the Monash Speaker Identification Unit,
and Phil Rose, who advocated the use of Likelihood Ratio (LR) in
speaker comparison and trained several graduate students in the use of
LR. Another branch of forensic linguistics in which Australian
scholars have played an important role is LADO – Language Analysis for
the Determination of the Origin of asylum seekers. The Guidelines
intended to assist governments in choosing appropriate LADO analysts
and procedures were developed by an international group of linguists
that included Australians Diana Eades, Helen Fraser, Tim McNamara and
Jeff Siegel. Australia is recognised internationally in the plain
language and law movement, especially because of Robert Eagleson who
was one of its pioneers. Plain English is especially important in
situations involving speakers of English as an additional language,
and many Australian linguists have worked with lawyers and legal
organisations to improve access to justice by attempting to make the
legal language more understandable. The most prolific Australian
linguistic researcher on legal issues impacting users of languages
other than English is Sandra Hale, whose contributions are
internationally recognised. Her study of lawyers' discourse markers
and question types in interpreted proceedings shows how and why it is
difficult for interpreters to achieve pragmatic accuracy.

The fourth section titled International Contexts deals with the
international contexts of the language data being analysed, primarily
in interrogative interviews, courtroom hearings and refugee status
determination interviews and related tribunal hearings. The
multilingual context of legal interactions in Australia has provided a
wealth of opportunities for research in these fields and yielded
numerous important contributions. For example, the work of Miranda Lai
on the relationship between cognitive interviewing strategies and
interpreted interviewing was the first of its kind. The first
Australian publication about the language in the courtroom was a
handbook for lawyers written in 1992 by Diana Eades and titled
Aboriginal English and the Law: Communicating with Aboriginal English
Speaking Clients. The handbook suggested that lawyers could find ways
to engage in more effective communication with Aboriginal clients and
witnesses. Laura Smith-Khan's research on communication with and about
asylum seekers resulted in extensive publications in legal and
linguistic journals.

As language is always used in a cultural context, the authors devoted
the next section to sociocultural contexts, in particular the context
of language in the law and the culture of law(s). In Australia, the
situations involving the participation of Aboriginal people have the
greatest impact on sociocultural context on language in the law. The
work of Alex Bowen offered evidence that many Aboriginal suspects in
the Northern Territory often fail to understand their right to silence
and that a key reason for this is the way in which that right is
expressed in the law and by police, because it is centred on the
expression 'you don't have to say anything' which is a vague way of
providing legal information. He also argues that telling a suspect
that a police interview can be used in evidence is only meaningful if
the suspect knows the word 'evidence’ and has a prior contextual
knowledge about how evidence is used in criminal trials, which is
knowledge about the culture of the law.

The last section titled Engagement, Expansion and Expectation
highlights some characteristics of forensic linguistics in Australia.
The authors recognise the important role of some members of the
judiciary and the legal profession in addressing language issues. For
example, Justice Sir William Forster's judgment in R v Anunga set out
and explained nine guidelines for police interrogation of Aboriginal
people. In conclusion, the authors express their respect and
appreciation for the linguists who broke new ground in applying
linguistics to the law.

EVALUATION

Attempting to answer the question what is forensic linguistics, John
Olsson concluded that it is the application of linguistic knowledge to
a particular social setting, namely the legal forum (from which the
word forensic is derived), and that in its broadest sense it is the
interface between language, crime and law, where law includes law
enforcement, judicial matters, legislation, disputes or proceedings in
law, and even disputes which only potentially involve some infraction
of law or some necessity to seek a legal remedy (Olsson, 3).

This Element outlines the development of forensic linguistics in
Australia in a clear and well-organised manner, emphasising some of
its specific characteristics, misconceptions related to it, linguistic
contexts within which it has developed and major contributions to the
field. It emphasises that a key feature of forensic linguistics in
Australia is the way in which linguists draw on existing research,
find their way within specific sociocultural contexts and enrich
linguistic science through their work.

A very characteristic feature of forensic linguistics in Australia is
the focus on the rights of individuals in the legal process, for
example, the rights of Aboriginal people when being questioned by the
police. It is therefore not surprising that most of the forensic
linguistic work involving sociocultural context in Australia
highlighted issues impacting the participation of Aboriginal people in
the law. Australian linguists greatly contributed to the field of
forensic linguistics in many ways, especially in the areas of forensic
transcription and phonetics, research on court interpreting, courtroom
communication and authorship attribution. They played an important
role in responding to many misconceptions about language and law that
can hinder access to justice and the right to a fair trial. The
authors of the volume characterise the field in Australia as critical
forensic linguistics, that is, forensic linguistics that engages with
questions of power and inequality.

Australian linguists also played an important part in the Plain
language for law movement. Plain language for law is the language
which relies on clear and simple style, and which is consequently more
understandable to the recipients. It refers to “the writing and
setting out of essential information that gives a co-operative,
motivated person a good chance of understanding it at first reading,
and in the same sense that the writer meant it to be understood”
(Cutts, 4). One of Australian contributors to the movement, Michele
Asprey (who is not mentioned in the Element), explained from the
position of a lawyer that things have changed and that “the public
perception of lawyers has changed. We are no longer seen as the
learned custodians of unknowable secrets. We are no longer immune to
challenge on our own ground. Our clients are asking questions. They
are demanding the right to understand the advice we give and they want
to be able to read the documents we draft for them.” (Asprey, 3-4).
This volume testifies that Australian linguists and lawyers are
changing things for the better and fighting for linguistic rights of
all people, not just native speakers of English.

Although this Element is elegantly slim, consisting of only 86 pages,
it offers a wealth of information and provides insight into the
development, history and specific characteristics of forensic
linguistics in Australia.  It is written in a clear and concise
manner, and it should be read by anyone interested not only in the
relationship between the language and the law but also in the very
specific sociocultural context of Australia as a country in which more
than 300 languages are spoken.

REFERENCES

Asprey, Michèle, 2003. Plain Language for Lawyers, Third edition, The
Federation Press, Sydney.

Bowen, Alex, 2019. You don’t have to say anything. Modality and
consequences in conversations about the right to silence in the
Northern Territory. Australian Journal of Linguistics, 39(3).

Cutts, Martin, 2007. Oxford Guide to Plain English, Oxford University
Press, Oxford.

Olsson, John, 2008. Forensic Linguistics: Second Edition. Continuum,
London.

ABOUT THE REVIEWER

Marijana Javornik Čubrić is a senior lecturer at the Faculty of Law,
University of Zagreb. She holds a PhD in legal linguistics and has
authored several LSP textbooks.



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