Review of Language in the Legal Process

[Harold F. Schiffman]

Forwarded from LINGUIST List 14.1957 Fri Jul 18 2003

Cotterill, Janet, ed. (2002) Language in the Legal Process

 Palgrave Macmillan, 288pp, hardback ISBN 0333969022, EUR 103,27,.

Nele Nivelle, University of Leuven, Belgium

INTRODUCTION

The editor of 'Language in the Legal Process', Janet Cotterill, aims at
bringing together in this volume essays of several of the leading
researchers in the field of forensic linguistics and language and the law.
The contributors originate from six different countries, hence
representing six different legal systems, and they all have their specific
areas of specialization. As most of the the authors are both academics and
are or have been employed as practicioners in the legal process, theory is
always sustained by practical evidence. The essays of the contributors are
divided up into four parts.

PART I: The Linguist in the Legal Process

Drawing from his wide experience with the interpretation and evaluation of
language evidence, Roger W. Shuy describes how linguists can best be of
service on this matter in legal processes.  He lists points of interest
for linguistic analysis of such language material, such as topic analysis,
response analysis, ambiguity and inferencing analysis, etc...  These
points are amply illustrated with authentic transcripts of tape-recorded
conversations between a defendant and a confidential informant.The
prosecution typically claims these conversations to be incriminating to
the defendant. The author stresses the importance of recognizing who
introduces possibly incriminating topics into the conversation and of
reconstruing the exact meaning of the defendant's utterances, which may be
blurred by either informant or prosecution.  Shuy further notes that,
because of the discomforts of cross-examination of expert witnesses,
linguists are usually most helpful to attorneys as consultants.

Malcolm Coulthard examines the nature of written police records of verbal
evidence.The Police and Criminal Evidence Act (PACE, 1984) stipulates that
the police should, whenever possible, make a contemporaneous audio or
video recording of verbal evidence. Before PACE, police records of verbal
evidence were often highly inaccurate, either because of lack of tape or
video recordings and the officer had to type out a verbatim account
afterwards out of memory, or because the officer wilfully altered form or
contents of the account, in order for it to better serve its purpose in
court, or both.Supported by three cases which predate PACE, and in which
judicial sentences were based on linguistic evidence, extracted from
police records of statements or interviews, Coulthard shows how lack of
coherence in these police recorded texts, e.g. in non corresponding
question-answer strains, in misuse of reference words or in unexplainable
topic changes, can prove the inaccuracy of those written accounts.

Gail Stygall holds a plea in favour of comprehensible immigration
documents.Immigrants turning to America for green cards are being
confronted with a highly xenophobic bureaucracy. Applicants are required
to read and fill out correctly numerous documents, containing highly
formalized language and difficult vocabulary. The author claims that these
inaccessible forms result from the fact that immigrants are not
politically represented, as they are not allowed to vote. She supports
this claim by comparing an immigration document with a government document
intended to be filled out by an American citizen, on the topic of simple
document design principles. The immigration document indeed scores
substantially less on the amount of white space, a clear typeface, the
recommended line length and a logical presentation of topics.  Stygall
further points at complex syntax, maladjusted vocabulary, unclear
references and ambiguous meaning of speech acts in immigration documents.

While product liability is a steadily emerging branch in the law, Peter
Tiersma observes that legal and government standards concerning product
warnings are yet insufficient. The warning standard he aspires to achieve
is that of the highest comprehensibility for as many product consumers as
possible. In reference to Grice's maxims, he focuses on the appropriate
quantity and the relevance of the information presented in a product
warning. The author inquires into the possibilities of bilingual warnings,
safety symbols and pictograms, therefore relying on findings of expert
research and existing judicial rulings on these topics. Tiersma concludes
that a warning ideally comprises an imperative constituent, stating what
the consumer should do, and an informative one, formulating the imminent
dangers of the product.

PART II: The Language of the Police and the Police Interview.

Karen Tracy and Robert Agne chart the potential difficulties police
call-takers experience in receiving emergency calls on domestic disputes.
These disputes more than often are the result of intricate histories and
contain various sensitivities, as reporting one's close relatives is
socially regarded to be at least morally dubious.  Tracy and Agne list
various linguistic markers which foreshadow sensitive issues, based on a
corpus study on citizen-police calls about domestic disputes.
Furthermore, they describe how the sensitivities themselves are
conversationally revealed and managed.Finally, the authors zoom in on how
call-takers can be helpful in such cases where police-intervention is not
an option.

Alison Johnson's article contributes to the understanding of 'so'-prefaced
questions in specialized institutional settings, such as police interviews
with child witnesses and adult defendants. An example of a 'so'-prefaced
question is ''So you stayed home all night?''.  Via elaborate corpus
research, the author discerns various meanings and uses for that type of
question. She finds that 'so'-prefaced questions can help construct,
summarize and organize very young children's often incomplete and
incoherent narratives, and that they take on a narrative sequence and
organisational importance in the narratives of adolescent witnesses. In
interviews with defendants, however, the author records that 'so'-prefaced
questions are mainly used to recapitulate and summarize, challenge, and
evaluate the defendant's previous statements.

The role of the interpreter in the dynamics of investigative police
interviews with suspects is elaborated on in Sonia Russell's essay.An
interpreter's intervention in the normal dyadic turn-taking system of an
institutional dialogue may have severe consequences for the procedure and
final result of the interview. More specifically, the author points out,
by means of corpus data, the interpreter's crucial role in handling the
occurrence of overlapping turns of the police officer and the detained
person.It is often just not possible for the interpreter to remember and
translate overlapping information, and interrupting both speech
participants, temporarily ignoring one (or even both) of them, or
explicitly allowing one of the speech participants to continue (explicit
turn allocation), may be to the advantage, or disadvantage, of either
party.

Susan Berk-Seligson also comments on the interpreter's precarious position
in police interviews with suspects, but she does so in the light of the
suspect's Miranda rights.These constitutional rights allot a suspect the
freedom not to answer police questions in order to avoid
self-incriminating statements. The author describes a legal case in which
a murder suspect is officially allocated an interpreter who is also a
police officer.In his translations and his behaviour in general, the
interpreter, however, obviously maintains the role of police officer, in
which he feels more comfortable and powerful.Berk-Seligson exposes the
linguistic techniques used by the interpreter to coerce a confession from
the suspect, whenever the latter appeals to his Miranda rights.

PART III:The Language of the Courtroom I: Lawyers and Witnesses.

Janet Cotterill addresses the issue of intertextuality in narratives in
forensic settings.In these narratives, repetition plays a crucial role,
since deviation of other or former narratives may implicate the narrator's
incredibility.The latter is illustrated by the trials against O.J.
Simpson.In the civil case against Simpson, the defence lawyer demonstrated
one of the prosecution's witnesses' incredibility, by citing (parts of)
this witness's previous official narrative, and confronting him with his
present deviant version of the facts. The author closes on stressing the
need for the complexity of narrative voices and versions in forensic
settings to be further explored and analysed in future research.

Diana Eades conducts a sociolinguistic study of the cross-examination of
young aboriginal people.Aboriginal people tend to make use of ''gratuitous
concurrence'', which involves saying ''yes'' in answer to a question, not
necessarily to express consent to the proposition at stake, but primarily
to show willingness to cooperate in the communicative situation.Firstly
Eades enumerates various strategies specifically used to elicit
agreement.She goes on to demonstrate how lawyers and police abuse these
strategies by purposely misinterpreting the elicited aboriginal's
''cooperative'' agreement as a confirmation of the preceding
proposition.The author discusses the case of three young aboriginal boys
against six police officers, in which gratuitous concurrence was elicited
from the aboriginal teenager witnesses and was afterwards misinterpreted,
causing the charges against the defendants to be dropped.Eades warns for
the cultural and sociological boundaries of the cross-examination process
as used in Australian courtrooms.

Lawrence Solan offers a linguistic approach to the Clinton scandal, in
which the former president expressly distinguished between being truthful,
but deceptive and being downright dishonest.The American perjury statute
states that only people under oath who are knowingly untruthful about any
material matter are guilty of perjury.Solan investigates the legal
desirability of a law, which does not consider perjurious people under
oath who omit relevant information, or make true statements which they
know will lead the hearer to draw wrong inferences.The author concludes
that the legal system, however, should not be tougher on ''liars''.In
defence of this view he refers to the rule of lenity, the often deceptive
practices used by lawyers and the problem of judging borderline false
records.

Rosemary H. Moeketsi concentrates on the difficulty of interpreting across
cultures.She illustrates this with a South African Alternative Dispute
Resolution (ADR) case.Whereas a faithful translation of the source message
is a preliminary demand of interpreters in judicial settings, the ADR case
shows that some interpreters, by lack of proper training or experience or
because of emotional involvement, fail to deliver this message, or even
worse, give an altogether different translation of the original message.
Among the features of inaccurate interpreting the author lists multiple
repetitions in the translation, direct transferences from the source
message, mere approximations in the translation of the source message, and
lexical simplifications in the translation.The interpreter's failure to
appropriately communicate culture-sensitive or culture-specific topics,
may lead to communication breakdown and severely damage the principle of
legal certainty.

PART IV: The Language of the Courtroom II: Judges and Juries.

Out of his wide experience as a judge in bankruptcy cases, Stan Bernstein
stresses the need for forensic linguistic research on the topic of
administration of bankruptcy cases.  He illustrates this claim by
describing a dispute which was brought to his court between a native
American debtor and a creditor, originating from South Korea, with very
limited English skills.They disagreed on whether or not the debtor had
given the creditor ''actual notice'' of his bankruptcy.The author raises
the question whether the court can or should take into consideration
limited English skills of a person involved in the process of a formal
judicial proceeding or, alternatively, should there be an objective
standard, stating exactly what the meaning and intent of an oral report in
formal judicial proceedings is.The latter would, however, inevitably put
those citizens who lack proficiency at a disadvantage.

Chris Heffer initiates a comparison of the American and British methods of
jury instruction.American, as well as English judges are provided with a
body of texts concerning jury instruction on various legal matters, called
''Pattern Instructions'' (Am.) and ''Specimen Directions'' (Gr. Br.)
respectively.Whereas American judges, however, are to give a verbatim
record of the Pattern Instructions, British judges are allowed a more
flexible approach.As complaints on the American jurors' poor understanding
of their task are abundant, Heffer inquires into the nature and possibly
more fruitful outcome of the British way of jury instruction.On the basis
of linguistic features, the author records British judges' inclination to
narrativising the instruction, e.g. in personally addressing the jury,
making legal terminology more concrete, giving examples, in short, to make
the legal language more tangible.The data, Heffer concludes, seem to
indicate that English judges manage ''reasonably well'' in communicating
jury instructions.

Bethany K. Dumas illustrates the difficulty American judges face in
effectively communicating jury instruction by the case of Jacobs v.
Johnson.After Jacobs had been found guilty of capital murder, his lawyer
questioned whether the jury had understood the intended meaning of several
key legal terms, such as ''reasonable doubt'', a ''lesser included
offence'', ''mitigating evidence'', etc.The defence lawyer assembled a
team of experts who each studied the jury instructions for
comprehensibility.They all agreed on insufficient comprehensibility for
the jury, and not merely on the basis of intransparent legal
terminology.Complex syntax, general vagueness and ambiguity, and possibly
suggestive text syntax added to the experts' belief that the jurors did
not understand their instructions.The Jacobs case is now pending in
federal court.

Dbora de Carvalho Figuieredo in her essay discusses the pedagogical role
of the discourse of English legal decisions on rape trials. Over the
decades, a gradual shifting interest is found in punishing more in the
mind and the social body of perpetrators, instead of in the physical body
itself.This ''modern'' disciplinary power is obtained, the author
proceeds, by the concepts of hierarchical observation, normalising
judgement and examination of both victims and possible or actual
perpetrators. She demonstrates in several Reported Appellate Decisions on
rape crimes how custodial sentences, in combination with psychiatric and
medical follow-up of the perpetrator, can further attempts at
normalisation, and how they can set an example and warning for the
perpetrator, the society at large, and women and girls in particular.De
Carvalho Figuieredo further addresses the issue of infra-penalties, which
subjects rape victims to the painful process of having their most intimate
private life exposed and judged in a public court.

CRITICAL EVALUATION

Exactly how right John Mellinkoff (1963) was in opening his now classic
'The Language of the Law' with ''The law is a profession of words.'' (ib.:
vii) is once again plentifully illustrated by the contributions to
'Language in the Legal Process'.The book presents an excellent update of
the data in 'Language and the Law', edited by John Gibbons in 1994.  A
wide range of topics concerning forensic linguistics and language and the
law is dealt with by authors who often are or have been involved as expert
witnesses in legal cases.The volume hence functions as a good overview of
recent research in forensic linguistics and language and the law, both for
linguists, interested in this strain of research, and for magistrates,
lawyers and whoever else in the course of a legal process may find
themselves confronted with or make use of linguistic expert
witnesses.Sceptics, who still have their reservations about linguists
testifying in court, can find in these essays an accurate account of how
the trained linguist's ear may discern the story behind the story (see
also Shuy 1993), thus putting another perspective on a case, or how he may
expose hidden communication deficiencies, thereby putting otherwise
potentially incriminating statements or reactions in their right
perspectives.

It is the potentially crucial role the contributors to the volume play
through their expertise in the acquittal or condemnation of defendants in
the cases described in the essays, that makes this a compelling book to
read.Illustrations of courtroom practices give us, as Tiersma puts it, ''a
chance to observe legal language in its most dramatic setting'' (1999:
145). Along with this goes that the conclusions, hence, of the different
essays do not so much involve theoreticising, as deriving practical
implications of the conducted research, potentially leading to a gradual
improvement of the aspects of language in the law concerned.

REFERENCES

Gibbons, John, 1994.  Language and the Law.  London and New York,
Longman.

Mellinkoff, David, 1963. The Language of the Law.  Boston / Toronto,
Little, Brown and Company.

Shuy, Roger W., 1993. Language Crimes.  The Use and Abuse of Language
Evidence in the Courtroom.  Oxford UK & Cambridge USA, Blackwell.

Tiersma, Peter M.,1999. Legal Language.  Chicago, The University of
Chicago Press.

ABOUT THE REVIEWER

Nele Nivelle is a PhD candidate working for the Center of Dutch Legal
Language at the University of Leuven.  She is currently preparing a
dissertation on the use of counterfactual reasoning in legal discourse
(supervised by William Van Belle & Willy Smedts).  Her main research
interests are pragmadialectics, rhetoric, forensic linguistics and
cognitive linguistics.