Review of Shuy: Creating Language Crimes

[Harold F. Schiffman]

Forwarded from Linguist-List, Sat Dec 03 2005
--------------------------------------------------------------------------------
From: Kerry Linfoot-Ham <knkhamyahoo.co.uk>


AUTHOR: Shuy, Roger
TITLE: Creating Language Crimes
SUBTITLE: How Law Enforcement Uses (and Misuses) Language
PUBLISHER: Oxford University Press
YEAR: 2005

Kerry Linfoot-Ham, doctoral student, Department of Linguistics,
University of Florida

OVERVIEW

In the introduction to his book, renowned Forensic Linguist Roger Shuy
states: ''There is a fine line, perhaps, between giving a somewhat better
impression than we deserve and being deceptive or outright lying'' (p.
ix). This habitual conversational strategy is, he argues, of heightened
interest when it is used to manipulate evidence and, at times, to create
language crimes. This is the focus of this book, which is aimed at
(forensic) linguists, criminologists, law enforcement officers, (critical)
discourse analysts, and anyone with an interest in language and the law.

Despite being a seasoned veteran of linguistics, Shuy manages to maintain
the level of the book at an introductory style, explaining terms that may
be unfamiliar to non-linguists, but without being condescending. His
approach is clear, articulate and, importantly, accessible without being
monotonous. This is a new field of linguistics, but those few others who
do have experience in this area will also find invaluable techniques and
tips for their own investigations.

CONTENTS

Part I: Language Crimes, Conversational Strategies, and Language Power
Chapter 1: How Language Crimes are Created In the first chapter, Shuy
introduces his terminology and focus, as well as the three stages of
linguistic evidence collection: data gathering, the police interrogation,
and the trial. He states that, as the law is more comfortable dealing with
the written word, investigation into spoken evidence and its manipulation
at all three stages is crucial.  The focus of his analysis is undercover
'sting' operations and, using evidence from real cases, Shuy investigates
how cooperating witnesses (civilians who agree to wear recording
equipment) and undercover law enforcement officers may manipulate the
uneven power distribution over their unsuspecting target to gain the
evidence for which they are consciously, and actively, searching. He says
that in these situations, ''...the language strategies used to create the
illusion of criminality seem to be frequently carried out deliberately'',
(p. 11).

Chapter 2: Conversational Strategies Used to Create Crimes ''Part of the
intelligence analysis in any criminal case begins by recognizing whether
the crime was actually committed by the target or whether an illusion of a
crime was created by the person wearing the mike'' (p.29). This assertion
frames Shuy's intentions throughout the rest of his analysis. By
identifying eleven conversational strategies (e.g. using ambiguity,
contaminating the tape, and scripting the target)  that are commonly
employed by undercover officers and cooperating witnesses in the
information gathering stage of a criminal investigation, Shuy shows that
it is often just this created illusion that may result in a guilty
verdict, rather than actual evidence of a crime committed.  Shuy states
that the undercover operative has a specific goal in mind:  to record
incriminating evidence from a set target. With this agenda in mind, the
choice of conversational strategies is going to be extremely conscious and
directed, only at this deliberate end.

Chapter 3: The Power of Conversational Strategies In the particular
situation covered in Shuy's research, i.e. an undercover operative taping
the speech of a target with the aim of recording linguistic evidence of
illegality, there is an inherent imbalance of power. The agent has control
over the situation.  However, this particular speech event is atypical of
regular communicative occurrences due to the fact that the target is
unaware of this imbalance of power and, therefore, will treat the
situation in the same manner as any other communicative event. Shuy,
following Sornig (1989) terms this ''manipulative seduction'' (p. 32).
During manipulative seduction the hidden intent of the seducer is not
evident to the target, and in this particular situation these intents go
beyond the two interlocutors and onto the recording's future listeners,
i.e.  judges, lawyers, and - most importantly - a jury. Through
manipulation of the unknown power differential, it is, Shuy asserts,
possible and even probable, that undercover agents may use indirectness to
their advantage. The target may believe that they understand the
communicative event that is occurring, but their misunderstanding of the
full range of effects of the situation will certainly cause them to react
differently than they may have, had they been fully aware of the possible
outcomes. While these techniques are not limited to undercover operations
(they also appear in police questioning (cf.  Heydon, 2005) and courtroom
discourse (cf. Cotterill, 2003; Lakoff, 2000), Shuy maintains that they
are particularly powerful, and particularly unfair, in this situation.

Part II: Uses by Cooperating Witnesses Chapter 4: Overlapping, Ambiguity,
and the Hit and Run in a Solicitation to Murder Case: Texas v. T. Cullen
Davis Even from an anecdotal point of view this case is interesting as
Shuy tells us that it was a string of coincidences that led to his
involvement as an expert witness, and this became the launch of his
esteemed career as a forensic linguist. His analysis shows how the 'hit
and run' technique was used by the cooperating witness wearing a recording
device to create an absolute illusion of linguistic evidence. Through
careful analysis of both the audio- and video-taped evidence, Shuy shows
that the target was unaware of much of his interlocutor's half of the
conversation - particularly those parts that explicitly mentioned the
crime at hand.

Chapter 5: Retelling, Scripting, and Lying in a Murder Case: Florida v.
Alan Mackerly This chapter highlights the problems of getting a target to
reiterate linguistic evidence for the purpose of recording it. By
examining a case in which the target had allegedly told the cooperating
witness previously that he had committed murder, Shuy uncovers the
strategies employed by the cooperating witness to encourage the target to
repeat his confession. Problems in this kind of undercover investigation
begin initially with the fact that it may simply seem unbelievable to the
target that their interlocutor may need to have such intrinsic facts
repeated. It is absolutely necessary for the purpose of prosecution,
however, that the linguistic evidence be clearly and unambiguously stated
and recorded. Shuy's categories of 'scripting', 'retelling', and 'planting
of false information' are all examined to show how this cooperating
witness unsuccessfully attempted to reach this goal.

Chapter 6: Interrupting, Overlapping, Lying, Not Taking ''No'' for an
Answer, and Representing Illegality Differently to Separate Targets in a
Stolen Property Case: US v. Prakesh Patel and Daniel Houston In this case,
Shuy was presented with linguistic evidence from two separate targets. One
of the targets was easily proven to be guilty of the accused crime, but
the second is simply implied to be guilty through their involvement with
the first. Here, both a cooperating witness and an undercover DEA agent
used a variety of strategies in attempts to capture linguistic evidence
that the targets were illegally selling ingredients that were being used
in the manufacture of methamphetamines. Whereas the facts were presented
less ambiguously and the representations of illegality were expressed more
directly to the first target, the second target was presented with
language that camouflaged the illegality of his actions, was ignored when
saying 'no' to illegal requests, and otherwise presented with inexplicit
words and expressions. Although both targets were convicted of the crimes
of which they were accused, Shuy's analysis makes it clear that this
conviction could not have been made had the prosecution been required to
rely on the linguistic evidence alone.

Chapter 7: Eleven Little Ambiguities and How They Grew in a Business Fraud
Case: US v. Paul Webster and Joe Martino In this chapter Shuy analyses in
detail a series of conversations between a cooperating witness and two
businessmen that are being investigated in a fraud case at a brokerage
company. Shuy identifies eleven separate ambiguities that are utilized by
the cooperating witness in an attempt to draw incriminating linguistic
evidence from his targets. By giving a detailed description of each
ambiguity in turn, the author shows not only that the linguistic evidence
provided should be insufficient for a guilty verdict, but also, by giving
examples that would have held up to a more strict scrutiny, Shuy
illustrates how this particular case could have been more clear and
unquestionable.  Despite Shuy's contributions, the defense failed to use
his analysis to its fullest in court, and the ambiguities were sufficient
to persuade the jury that the targets were guilty of the crimes of which
they had been accused. Although the system appears to have failed in this
case, Shuy's inclusion of this analysis serves to highlight how important
such forensic linguistic analysis may become as it becomes more usual and
also more effectively used in the courts.

Chapter 8: Discourse Ambiguity in a Contract Fraud Case: US v.  David
Smith The use of discourse ambiguity is, Shuy states, usual and effective
in undercover investigations. This tactic is particularly successful at
drawing out clarifications from target subjects that may be recorded as
incriminating linguistic evidence at this stage of the investigation.
There are, however, a number of reasons why the target may not be drawn
into the trap, including the facts that they may be either guilty of the
suspected crime, or innocent of it, or that they may suspect that they are
being recorded. In the case study detailed in this chapter, Shuy exposes
the illusion of incriminating linguistic evidence in a fraud case against
an aircraft engineering company executive. By effectively exposing how the
target was not explicitly drawn into the cooperating witness's strategies,
Shuy's testimony on the case proved that, not only was the evidence
insufficient to convict the executive, but, he argues, that the case
should never have made it to court. He shows that, had the government made
better use of expert analysis such as that provided by forensic linguists,
much time, hardship and money could have been saved.

Chapter 9: Contamination and Manipulation in a Bribery Case: US v.  Paul
Manziel In the case study presented in this chapter, Shuy shows how the
cooperating witness manipulated the tape physically to create the illusion
of guilt in his targets, two Texan brothers. In this particular situation,
the cooperating witness was given complete freedom to turn the recording
equipment on and off, sometimes in the middle of ongoing conversations.
Shuy also suspects that the witness manipulated the sensitivity of the
recording equipment by creating static when the target was saying things
that would have clearly indicated he was not involved in any illegal
activity, and that, due to people coming and going during long
conversations, the targets may not have even been present during the
recording of crucial linguistic evidence. When Shuy's analysis uncovered
these techniques, the defense attorneys that he was assisting requested to
examine the FBI's recording equipment in order to assess how such tape
manipulation could have occurred. When this request was denied - citing
''national security concerns'' (p. 97) - the judge suppressed all tapes
made by the recording device as evidence, effectively blocking access to
this particular linguistic evidence.

Chapter 10: Scripting by Requesting Directives and Apologies in a Sexual
Misconduct Case: Idaho v. Mussina In the complex case presented in this
chapter, Shuy analyzed tapes recorded by a woman who was accusing a doctor
of sexual misconduct. The woman had recorded telephone conversations
between herself and the doctor in order to provide evidence that she had
been forced into providing unwilling oral sex. During the recorded
conversations, the woman uses what Shuy calls a ''scripting strategy'' to
try and get the doctor to incriminate himself. For example, in one
conversation the woman tries to get the doctor to apologize for what she
claims he did to her. During the conversation, the doctor does indeed
apologize, but close analysis shows that the doctor and the woman are not
sharing the same reference about the reason for the apology - and the
doctor's reference is shown to be benign with regard to the charges in
this case. Shuy's analysis of these conversations showed how the woman's
techniques failed to provide any linguistic evidence that the doctor had
been involved in sexual misconduct against her, and he was subsequently
acquitted of the charges.

Part III: Uses by Law Enforcement Officers Chapter 11: Police Camouflaging
in an Obstruction of Justice Case:  US v. Brian Lett The first chapter
illustrating how law enforcement officers may also be guilty of creating
language crimes concerns a case against a young lawyer suspected of
obstructing justice. In this case, the undercover officer recorded
conversations in which he attempted to show that the lawyer was willing to
steal files pertinent to a case on which he was working, and that he was
also willing to use influence to remove the US Postal Service Inspector
that was handing this case. By detailing the techniques employed by the
undercover officer, Shuy shows successfully that any illegality is
completely camouflaged, and that there is a possible, legal,
interpretation for the interactions that take place between this agent and
the target. The vocabulary choices used by the officer are ambiguous, and
interjections and other discourse markers utilized by the target are shown
by Shuy to prove that the lawyer did not share the illegal references at
which the officer was hinting. Shuy's evidence helped the jury in their
decision to acquit the young lawyer.

Chapter 12: Police Camouflaging in a Purchasing Stolen Property Case: US
v. Tariq Shalash Again camouflaging is employed by an undercover officer
in this next case study. Here a businessman is suspected of dealing in
stolen goods, and undercover officers attempt to capture linguistic
evidence of his guilt in a series of undercover sting operations. The
ambiguity employed by the agents is again the main cause for concern in
the case. Until the final conversation, the officers fail to be completely
explicit with regard to the illegal origins of their merchandise, choosing
instead to euphemize and hint, i.e. to 'camouflage'. Despite the fact that
his analysis was made available to the defense, Shuy was not called upon
to testify in this case. The target was convicted of purchasing stolen
goods.

Chapter 13: A Rogue Cop and Every Strategy He Can Think Of: The Wenatchee
Washington Sex Ring Case This chapter details Shuy's involvement in the
high-profile Wenatchee Sex Ring Case of 1994. In this case, a detective,
Robert Perez, began investigating claims of sexual misconduct against
children in this town when a foster child his family had taken in told him
that she had been abused. The case became a massive witch-hunt, eventually
resulting in forty-three adults being charged with twenty-nine thousand
counts of the rape and molestation of sixty children. Perez's
investigative techniques came under scrutiny quite early on in this
investigation, and many claims and lawsuits were filed against the
authorities, stating that a large variety of tactics from the coercive to
the downright illegal had been employed in the interviewing process.
Despite the fact that Perez had not recorded any of the interviews, Shuy
and a colleague were able to analyze the written reports that he had
submitted and to conclude that there was every likelihood that they had
been altered, or in many cases completely fabricated, by the detective.

Chapter 14: An Undercover Policeman Uses Ambiguity, Hit and Run,
Interrupting, Scripting, and Refusing to Take ''No'' for an Answer in a
Solicitation to Murder Case: The Crown v. Mohammed Arshad In this case, a
Pakistani man was convicted of soliciting the murder of his daughter's new
husband. Shuy was asked to analyze recording made by an undercover officer
that were used by the prosecution to show that Arshad employed an
undercover officer to kill his son-in- law. Through his analysis, Shuy
focuses on several strategies that were employed by the officer that
either disguised the innocence of the target, or, he shows, failed to
elicit full and unambiguous requests for the assassination. Despite the
fact the Shuy states ''I am familiar with the fact that undercover police
often are not explicit in their representations of illegality and that the
target's efforts to say ''no'' are sometimes blocked by the agent'',
(p.139), it is nonetheless a requirement of the courts that the target
themselves express explicitly their illegal intentions for linguistic
evidence to be incriminating.  Shuy's analysis shows that this is not
evident in this particular case. Shuy was, however, unable to testify at
the court hearing for Arshad, though he intends to provide his expert
analysis and opinion at the upcoming appeal. It will remain to be seen
whether the inclusion of this forensic linguistic analysis will be helpful
in reversing the court's original decision.

Chapter 15: Manipulating the Tape, Interrupting, Inaccurate Restatements,
and Scripting in a Murder Case: Florida v. Jerry Townsend This rather
disturbing case study shows how Florida law enforcement agents may have
manipulated the recording devices, scripted, and provided inaccurate
restatements of a suspect's words in the interviewing process of a
mentally challenged individual. In the late 1970's, Jerry Townsend was
arrested for the murders of several prostitutes. He admitted killing five
women, but the police continued to interview him over a period of five
days to ascertain whether he had been involved in some other unsolved
murders of a similar nature.  During these five days, only four hours of
interview were recorded.  Shuy's analysis shows massive use of the on/off
switch during conversations with the target. These were often not overtly
audible, but the electronic signature may be picked up by sensitive
equipment, and other instances may be discernable through the analysis of
background noises. On several occasions, such manipulation occurred
resulting in two different answers to questions, i.e. the target answered
a question, the tape was stopped, and when the tape was restarted Townsend
gave a different answer. Through this type of analysis, as well as
detailed grammatical discourse analysis, Shuy shows that the target was
clearly being scripted. After serving twenty- two years in prison, DNA
evidence finally acquitted Townsend of all of the crimes. Shuy terms this
example of linguistic evidence a ''legal fiasco'', (p.164).

Part IV: Conversational Strategies as Evidence Chapter 16: Eight Questions
about the Power of Conversational Strategies in Undercover Police
Investigations In the final chapter of this book, Shuy tidies up certain
issues regarding the usefulness of his analyses, the justification for
using such strategies, and how the future of forensic linguistic analysis
of this type may look. While stating that cooperating witnesses and
undercover police officers employ, mainly, the same strategies, Shuy
mitigates this by adding that these strategies are also employed
frequently in everyday conversation. This does not make them any less
dangerous in the undercover situation - in fact quite the opposite.  That
we are used to these conversational happenings, and that we usually deal
with them by simply waiting for them to sort themselves out, mostly out of
a need for politeness (cf. Brown and Levinson, 1987) and an expectation of
conversational cooperation (cf. Grice, 1967) with our interlocutor will
inevitably work against us if we were ever to be placed in the position of
being recorded by an undercover operative. Forensic linguistics are
invaluable, Shuy argues, to point out these strategies in order for the
jury to be able to more readily place themselves in the position of the
recorded target during the court hearing. Juries, Shuy states, ''should
not be expected to have to guess or infer when they make their
decisions'', (p. 183). He concluded with the strong fact that
''[c]riminals should be caught and punished, but only by using fair and
just methods'', (p. 185). This book goes a long way to uncovering some of
the underhand methods that have, until now, been escaping notice at all
levels of the criminal justice system.

CRITICAL EVALUATION

This book is an excellent, beautifully written example of forensic
linguistic analysis. The text is accessible to all levels of researcher,
providing background information for those who may not be formally trained
in linguistics. It is detailed enough, however, for professional linguists
to also gain an extraordinary amount of information into this new and
growing field of Applied Discourse Analysis.

Throughout his analyses, Shuy provides examples of reformulations and
strategies that law enforcement and cooperating witnesses could have used
to allay concerns regarding the strategies employed, and to dispel doubts
that may be cast upon their investigations if they should undergo such
forensic linguistic analysis. These will be useful for all investigative
interviewers, and should become a standard module for the training of
undercover operatives.

This is a new, expanding and important field of linguistics. Shuy's
contributions to the area in both this book and his previous contribution,
''Language Crimes'', 1993, are immeasurable. As new investigators come
into the field, it is guaranteed that these early works will become
classic reference texts.

REFERENCES

Brown, P. and Levinson, S. (1987) ''Politeness: Some Universals in
Language Use''. Cambridge: Cambridge University Press.

Cotterill, J. (2003) ''Language and Power in Court''. Hampshire:
Palgrave Macmillan.

Grice, H. P. (1967) ''Logic and Conversation'', in Cole, P. and Morgan,
J. (Eds.) (1975) ''Syntax and Semantics, Vol. 3: Speech Acts'', p. 43-
58.

Heydon, G. (2005) ''The Language of Police Interviewing: A Critical
Analysis''. Hampshire: Palgrave Macmillan.

Lakoff, R. (2000) ''The Language War''. Berkeley and Los Angeles:
University of California Press.

Shuy, R. (1993) ''Language Crimes''. Oxford: Blackwell.

Sornig, K. (1989) ''Some remarks on linguistic strategies of
persuasion'', in Wodak, R. (Ed.) ''Language Power and Ideology''.
Amsterdam: John Benjamins, p. 95-114.

ABOUT THE REVIEWER

Kerry Linfoot-Ham is a doctoral student at the University of Florida.
Her research interests focus on police-citizen interaction, with
particular reference to how Pragmatic theories may be utilized to
describe and account for suspicions of lying of guilt in suspects and
witnesses, and how these theories may be used in investigative
interviewing. Her current work involves observation of 'first-contact'
interviews between uniformed deputies and officers in response to
calls for assistance, and how the application of linguistic theories may
maximize and harmonize the interaction.

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